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PRACTICAL  TREATISE    ^^^ 

PLEADING:  o^/^ 

AND 

ON  THE  PARTIES  TO  ACTIONS, 

AND    THE 

FORMS  OF  ACTIONS. 


WITH  A  SECOND  VOLUME, 


CONTAINIXG 


PRECEDENTS  OF  PLEADINGS. 


IN  TWO  VOLUMES— VOL.  I. 


BY    JOSEPH    CHITTY,    Esq^. 

OF  THE  MIDDLE  TEMPLE. 


J^EW-TORK: 


PUBLISHED    BY    ROBERT    M'DERMUT,    LAW    BOOKSELLER, 
NO.     1,    CITY    HOTEL,    BROADWAY. 

1809. 


Isaac  Rilet/, 
Printer. 


TO 
THE  RIGHT  HONOUHABLE 

THOMAS,  LORD  ERSKINE, 

&c.  &c.  &c. 


My  Lord^ 

HAVING  been  encouraged  by  your  Lordship  to 
undertake  the  folloxving  treatise^  I  noxv  humbly  beg  leave 
to  dedicate  to  you  the  residt  of  my  labours ;  and  at  the 
same  thne  to  express  the  deep  sense  xvhich  I  entertain 
of  the  many  favours  received  from  your  kindness^  and 
in  particular ,,  the  most  gratifying  mark  of  confidence^ 
which  you  have  conferred^  by  honouring  me  with  the  pro- 
fessional tuition  of  your  son.  I  beg  to  subscribe  myself 
with  the  greatest  gratitude  and  respect^ 
My  Lord, 

Tour  Lordship'' s 
most  obliged  and 

obedient  serva7it, 

Joseph  Chitty. 
Temple,  7tli  November, 
A.  D.  1808, 


PREFACE. 


IN  submitting  the  following  treatise  to  the  public,  it 
inay  not  be  improper  to  prefix  a  short  prospectus  or 
analytical  view  of  its  contents,  by  which  the  reader  may 
be  enabled  to  judge,  how  far  the  subject  proposed  to  be 
considered  may  be  worthy  of  his  attention. 

Upon  the  practice  of  the  courts  of  common  law^ 
there  are  already  before  the  public  several  very  able 
treatises  ;  but  there  is  no  work  of  any  magnitude  which 
points  out,  the  Parties  to  an  action,  the  Forms  thereof^ 
or  the  Pleadings  therein;  and  the  very  frequent  defeats^ 
in  actions  and  defences,  occasioned  by  mistakes  in  these 
points,  sufficiently  evince  the  utility  of  a  practical  work 
upon  the  subject ;  I  have,  therefore,  been  induced  to 
submit  the  following  pages  to  the  profession. 

In  the  jirst  chapter,  which  relates  to  The  Parties  to 
an  action^  I  have  endeavoured  to  point  out  who  should 
be  made  the  plaintiffs  and  who  the  defendants,  as  well  in 
actions  on  contracts  as  for  toi-ts,  and  not  only  with  re- 
ference to  the  interest  and  liability  of  the  original  par- 
ties, and  the  number  of  them,  and  whether  standing  in 
the  situation  of  agents,  joint-tenants,  tenants  in  com- 
mon, or  partners,  and  who  are  to  join  or  be  joined  ; 
but  also  where  there  has  been  an  assignment  of  interest, 
or  change  of  credit,  or  survivorship  between  several,  or 
death  of  all  the  contracting  parties,  on  bankruptcy,  in- 
solvency, or  marriage.  The  consequences  of  mistakes 
in  the  proper  parties,  and  how  the\-  are  to  be  taken  ad- 
vantage of,  and  when  they  are  aided,  are  also  pointed 
out. 


PREFACE. 

In  the  second  chapter  are  considered  the  Form  and  the 
Particular  Applkability  of  each  Action  ;  the  pleadings, 
judgment  and  costs  therein  in  general  ;  the  consequen- 
ces of  mistake  ;  the  Johider  of  different  forms  and  of 
different  rights  of  action  ;  the  consequences  of  Misjoin- 
der ;  and  the  Election  of  the  best  remedy,  where  the 
plaintiff  has  the  choice  of  several.  In  considering  each 
personal  action,  viz.  assumpsit^  debt,  covenant,  detinue, 
case,  trover,  replevin,  trespass  and  ejectment,  I  have 
endeavoured  to  confine  my  observations  to  the  cases, 
where  the  action  is  sustainable,  or  whan  it  is  preferable 
to  another  remedy,  without  inquiring  into  the  nature  of 
rights,  or  of  injuries,  which  would  have  been  foreign 
to  the  object  of  this  treatise. (a)  I  have,  however,  in 
one  instance,  thought  it  advisable  to  depart  from  this 
plan,  in  order  the  better  to  explain  the  distinction  be- 
tween the  action  of  trespass^  and  that  of  trespass  on  the 
case ;  and  for  this  purpose,  I  have  endeavoured  to  state 
the  distinctions  between  torts  committed  in  fact,  or  in 
legal  consideration  with  and  without  force,  and  between 
torts  immediate,  and  consequential,  and  how  far  the  le- 
gality of  the  original  act,  or  the  defendant's  intention 
may  affect  the  form  of  action,  and  the  difference  made 
by  the  circumstance  of  the  defendant's  having  acted  un- 
der colour  of  process.  The  consequences  of  mistake  in 
the  form  of  action  are  also  stated. 

The  foinder  of  different  Forms  and  of  different 
R'ig'hts  of  action,  and  the  consequences  of  mistake,  are 
of  the  greatest  importance  to   the   success  of  a  cause. 


{a)  In  many  works  under  the  title  of  a  particular  action,  avc  find  tlie  na- 
ture of  rights  considered  ;  as  for  instance  under  the  head  "  .Assumpsit,"  af- 
ter stating  that  it  lies  on  a  bill  of  exchange,  we  find  the  whole  law  upon  bills 
of  exchange  is  collected.  This  is  not  a  convenient  mode  of  arranging  the 
subject  in  Aplcuding  point  of  view,  where  the  object  of  iuquiry  is  merely  tlie 
application  of  the  form  of  action  and  not  the  right. 


PREFACE.  vii 

and  I  have,  therefore,  with  some  minuteness  pointed 
out  the  particular  instances  o{  joinder  which  may  be 
most  likely  to  arise  in  practice. 

In  various  cases,  the  plaintiff  has  an  Election  of  seve- 
ral different  fonns  of  action  for  the  same  injury,  and  a 
judicious  choice  is  so  material,  that  it  may  frequently 
enable  the  plaintiff  to  enforce  his  claim,  which  would 
be  defeated  by  the  adoption  of  a  different  course  ;  I 
have,  therefore,  stated  several  leading  points,  which 
may  direct  the  pleader  in  his  choice  of  the  various  re- 
medies. 

In  the  third  chapter^  a  few  General  Rules  relating  to 
Pleading  are  collected,  and  pursuing  the  definition  of 
pleading,  (viz.  a  statement  in  a  logical  and  legal  form 
of  the  facts  of  which  the  courts  are  not  bound  ex  officio 
to  take  notice,)  I  have  first  pointed  out,  what  facts  are 
necessary  to  be  stated,  distinguishing  those  of  which 
the  court  will  ex  officio  take  notice,  without  their  being- 
shewn  in  pleading  ;  and  secondly,  the  mode  of  stating 
those  facts,  with  reference  to  certainty,  and  other  par- 
ticulars ;  and  thirdly,  I  have  considered  the  rules  of 
construction^  concluding  the  chapter  with  the  division 
of  the  parts  of  pleading. 

The  fourth  chapter  relates  to  the  form  and  requisites 
of  the  Praecipe^  when  the  plaintiff  proceeds  by  special 
original,  and  of  the  Declaration  in  personal  actions,  and 
with  respect  to  the  latter,  are  stated,  first,  the  general 
requisites^  and  secondly,  the  different  parts^  and  more 
particular  requisites^  whether  in  actions  founded  on 
contracts  or  for  torts.  In  assumpsit^  the  appropriate 
special,  and  common  counts  are  fully  examined,  and 
the  structure  of  declarations  in  debt^  and  covenant^  is 
separately,  and  distinctly  considered. 

Actions  in  form  ex  delicto  are  so  multifarious,  that  I 
have  thought  it  better  to  refer  the  reader  to  the  prece- 
dents, and  notes  in  the  second  volume,  than  to  attempt, 
in  the  first,  to  point  out  the  structure  of  the  declaration. 


viii  PREFACE. 

in  each  particular  case  ;  I  have,  however,  considered 
the  general  rules  to  be  observed  in  framing  declarations 
in  actions  for  torts,  and  which  will  be  found  to  relate  to 
the  statement  of,  first^  the  matter  or  thing  affected ; 
secondly^  the  plaintiff 's  r?^/^^  or  interest ;  thirdly^  the  in- 
jury;  sind fourthly ^  the  resulting  ^aw<7^^*. 

The  utility  of  Several  Counts  in  the  same  declaration 
and  the  forms  thereof,  are  also  treated  of  in  this  chap- 
ter, which  concludes  with  a  summary  of  the  instances, 
in  which  different  defects  in  a  declaration  will  be  aided. 

The  Claim  of  Conusancej  statement  of  the  defendant's 
Appearance^  and  Defence^  the  Demand  of  Oyer^  and 
statement  of  a  Deed  upon  it,  and  the  different  descrip- 
tions of  Imparlances^  being  connected  with  pleading,  are 
examined  in  the  fifth  chapter. 

In  the  remaining  chapters  are  considered  in  their  na- 
tural order — Pleas  to  the  yurisdiction  and  in  Abatem.enty 
und  the  proceedings  thereon  ;  pleas  in  Bar  to  the  action, 
and  Avowries,  and  Cognisances  in  replevin  ;  Replica- 
tions, and  Nexv  Assign7nents,  and  pleas  in  bar  to  avow- 
ries and  cognisances  in  replevin  ;  Rejoinders,  and  the 
subsequent  Pleadings ;  Issues,  Repleaders,  Pleas  Puis 
Darrein  Continuance ;  Demtirrers  and  Joinders  in  de- 
murrer, and  this  volume  concludes  with  a  copious  index 
of  the  contents. 


As  the  principal  object  of  ^\\^  frst  volume  is  directed 
to  the  statement  of  the  General  rules  affecting  pleading, 
I  have  thought  it  advisable  in  a  second  volume,  to  give 
Precedents  of  the  Pleadings  most  likely  to  occur  in  prac- 
tice, with  notes.  The  contents  of  this  second  volume, 
will  appear  from  the  analytical  table  prefixed,  and  from 
the  index  at  the  end  of  that  volume. 

The  forms  of  Courts,  being  the  commencements  and 
conclusions  of  declarations  in  each  court,    and  in  par- 


P  Rv  E  F  A  C  E. 

tlcular  actions,  and  the  precedents  of  declarations  on 
Bills  of  Exchange,  Checks,  and  Promissory  Notes 
having  already  been  published,  are  not  given  at  length 
in  this  volume,  but  the  common  counts  for  money  de- 
mands, in  all  the  cases  which  ordinarily  occur  in  prac- 
tice, are  given  on  account  of  their  great  utility  ;  the 
statement  of  the  subject  matter  of  the  debt  in  these  pre- 
cedents, not  only  serving  in  declarations  in  assumpsit, 
but  also  in  debt  on  simple  contract,  pleas  and  notices  of 
set-off,  and  in  affidavits  to  hold  to  bail. 

In  stating  different  titles  to  real  property,  and  the 
conveyances  and  other  means  by  which  such  titles  have 
been  acquired,  the  pleader  frequently  has  very  considera- 
ble difficulty  ;  I  have,  therefore,  given  a  great  variety 
of  precedents  under  this  head.  With  respect  to  other 
special  counts,  and  to  pleas,  replications,  rejoinders,  &c. 
I  have  endeavoured  to  give  one  or  more  of  the  most 
usual  precedents  under  each  head,  and  have  in  general, 
in  the  notes,  referred  to  the  precedents  which  may  be 
found  in  print.  It  was  impracticable  to  gi^'e  a  prece- 
dent for  every  case  which  might  occur,  but  those  con^ 
tained  in  this  volume  may  be  readily  applied  to  the  par- 
ticular circumstances  of  each  case,  or  at  least  ma}'  as- 
sist in  the  structure  of  other  pleadings  ;  and  though  the 
student  may  derive  some  assistance  from  this  collection, 
yet  he  must  not  thereby  be  induced  to  refrain  from 
taking,  or  at  least  analyzing  other  pleadings,  according 
to  the  course  which  his  own  judgment  or  that  of  a 
friend,  more  experienced,  mav  suggest. 


1  ne  utility  of  a  work  of  this  description  must  depend 
on  the  mode  in  which  the  subject  is  arranged,  the  cor- 
rectness of  the  positions  supported  by  legal  decisions, 
the  selection  of  the  best  authorities,  and  the  facility  of 
access,  b}  means  of  a  full  and  accurate  index.     To  these 


PREFACE. 

points,  therefore,  I  have  endeavoured  to  pay  attention, 
and  be  sides  the  reports  which  I  have  consulted,  the  read- 
er is  frequently  referred  to  the  Digests  and  Elementary 
writers.  Indeed  it  was  impracticable  to  write  on  a  sub- 
ject upon  which  the  authors  alluded  to  had  touched, 
without  occasionally  finding  some  parts  preoccupied,  and 
the  matter  so  ably  treated  of  as  to  leave  it  open  to  me, 
to  do  little  more  than  enlarge  upon,  and  arrange  such 
parts  of  the  subject  according  to  my  own  plan.  When 
this  has  occurred,  I  have  considered  that  it  would  be  the 
most  candid  mode  of  acknowledging  the  assistance  I 
have  derived  from  these  works,  and  at  the  same  time 
most  useful  to  the  profession,  if  in  the  notes  I  referred 
to  those  authors  in  addition  to  the  reported  decisions, 
sanctioning  my  own  view  of  the  subject  by  the  weight 
of  their  authority. 

The  kindness  of  my  friends  has  so  engaged  me  in  pro- 
fessional avocations,  that  I  have  with  difficulty  prepared 
this  work  for  publication,  and  the  various  interruptions 
which  I  have  experienced,  must,  I  fear,  have  occasion- 
ed some  inaccuracies,  for  which,  however,  I  hope  the 
candour  of  the  reader  will  make  allowance. 

Temple,  7t1i  Xovember, 
A.  D.  1808. 


PRACTICAL    TREATISE 


o?i 


PLEADING. 


CHAPTER  I. 

OF    THE    PARTIES    TO   THE    ACTIOS. 

JL  HERE  are  no  rules  connected  with  the  science  of  plead*- 
ing  so  important,  as  those  which  relate  to  the  persons  who  are 
to  be  the  parties  to  the  action ;  for  if  there  be  any  mistake  in 
this  respect,  the  plaintiff  is,  in  general,  compellable  to  aban- 
don his  suit  and  to  proceed  de  novo,  after  having  incurred 
great  expense  :  when  with  respect  to  most  other  objections, 
they  do  not  thus  affect  the  proceeding  in  its  inception,  and  oc- 
casion comparatively  but  small  expense.  The  general  rule  is, 
that  the  action  should  be  brought  in  the  name  of  the  party 
whose  legal  right  has  been  affected,  against  the  party  Avho  com- 
mitted the  injury,(a)  or  by  or  against  their  personal  represent- 
atives ;  and  therefore  a  correct  knowledge  of  legal  rights,  and 
*of  wrongs  remediable  at  law,  will,  in  general,  direct  by  and  ^    o 

against  whom  the  action  should  be  bi'ought.  But  as  in  the  ap- 
pUcation  of  this  rule,  difficulties  frequently  occur,  and  as  there 
are  many  particular  rules  relating  to  the  joinder  of  persons  in 
actions,  and  to  the  mode  in  which,  and  the  time  when,  a  mistake 
of  parties  should  be  objected  to  or  be  rectified,  it  is  advisable 
before  we  consider  the  form  of  the  action,  and  the  pleadings 

(a)  8  T  R.  332.     1  East,  49P 
Vot.  T,  [    1    ] 


(Jl    THE  PARTIES  TO   THE  ACTION 

therein,  to  take  a  concise  view  of  these  rules,  which  I  sliuli 
consider  under  two  general  heads.  First,  when  the  action  is  in 
form{b)  ex  contractu  ;  and,  secondhj,  when  it.is  inform  ex  de- 
licto ;  and  under  each  of  these  heads  I  shall  state,  Jirst,  who 
are  to  be  the  plaintiffs  ;  and,  secondly ,  who  are  to  be  the  de- 
fendants. 


/    LV  .ICTIOXS  IJ\'  FOJi'Jl  EX  CO.XTRACTU. 

The  rules  which  direct  who  are  to  be  the  parties  to  an  ac- 
tion in  form  ex  contractu,  whether  as  plaintiffs  or  defendants, 
are  to  be  considered,  Jirst,  as  between  the  original  parties  to 
the  contract,  and  secondly,  where  there  has  been  a  change  of 
parties,  interest,  or  liability.  And  under  the  Jirst  head,  Avith 
reference  to  the  interest  or  liability  of  the  parties,  as  whether 
•#   3  legally,  *or  only  beneficially  interested,  or  acting  merely  as 

agents,  or  standing  in  the  situation  of  joint-tenants,  tenants  in 
common,  partners,  &c.  and  in  the  case  of  several  contracting 
parties,  w'ho  must  or  may  join,  or  be  joined  ;  and  under  the 
second  head,  where  there  has  been  an  assignment  of  interest 
or  change  of  credit — survivorship  between  several — death — 
bankruptcy — insolvency- — or  marriage.  We  will  consider  these 
rules,  Jirst,  as  they  relate  to  the  plaintiffs  in  an  action. 


I.  PlaiiitiJ'i--.        In  general,  the  action  on  a  contract,  whether  express  or  itn- 
ist.     As    be-  plied,  or  whether  by  parol  or  under  seal,  or  of  record,  must 

twccn  tVx-ori-  ,      •      ,i  f    ,  •         .  i       7        >  • 

n-inal  parties,  'ic  brought  in  the  name  01  the  party  m  vvhom  the  legal  interest, 

tiiid    willi   ve-. 

fercnec  to  the    , ,___^ ^ 

iiiteivst  of  tli.u 

pUiintiffiu  the 

contract.  (i)  A   pluintif^  frequently  has  an  action,  do  not  apply.    Sec  3  East,  70.* 

election  to  proceed  even  for  a  breach  6  T.  11.   TOfi.      0  East,    333,  5.    and 

of  an  express  contract,  cither  in  as-  therefore  I  have  considered   the  fol- 

siiiiipnit  or  in    case ,-    and  ■vvlien  the  lowjji^-  rules    ia     their    relation    to 

latter  _/brj«  of  action  is  adopted,  many  the  foum  of  the  action,  rather  lliau 

of  the  rules  as  to  the  parties  to   tlic  to  the  subject  matter  of  it. 

*  Xole.     llic  Cuiirt  of  Ccmmoii  Pleas  deny  the  propriety  of  the  decision  iu 
3  Kuot,   70.     &e 'i  JVc'M  Mep.  o'iii.  'yii. 


IN  FORM  EX  CONTRACTU.  18 

in  such  contract,  is  vested. (c)  Tluis  the  action  ac^ainst  a  car-  /.  riaintijfs. 
vicr  for  the  loss  of  goods,  must  in  general,  be  brought  in  the 
name  of  the  consignee,  and  not  of  the  consignor,(c/)  the  law 
implying  the  contract  by  the  carrier  to  have  been  n^ade  witii 
the  consignee,  in  whom  the  property  in  the  goods  v/as  vested 
by  the  delivery  to  the  carrier  ;  and  though  a  covenant  with 
several  persons  be  joint  and  several  in  the  terms  cf  it,  yet  if 
the  legal  interest  and  cause  of  action  be  joint,  the  action  must 
be  brought  by  all  the  covenantees  :  and  on  the  other  hand,  if 
the  interest  and  cause  of  action  be  several,  the  action  may  l^e 
brought  by  *one  only,  though  the  covenant  be  in  tlie  terms  of  "''"   4 

it  only  joint. (/)  And  as  a  covenant  to  and  with  ^/,  his  exe- 
cutors, administrators,  and  assigns,  and  to  and  with  /i,  and  her 
assigns,  to  pay  an  annuity  to  A^  his  executors,  Sec.  during  B^s 
life,  is  a  joint  covenant  to  A  and  i),  in  which  they  liave  a 
joint  legal  interest,  although  the  bcnrjit  be  for  A  only ;  there- 
fore on  the  dcatli  of  A^  the  right  of  action  survives  to  i>,  and 
A^s  administrator  cannot  sue  on  the  covenant,  because  the  ac- 
'ion  follows  the  nature  of  the  legal  interest.(,§-) 

When  a  bond  is  made  to  A  to  pay  him  or  a  third  person  a 
sum  of  money  for  the  bcivjit  of  the  latter,  the  action  must  be 
brought  in  the  name  of  A^  and  the  third  person  cannot  even 
release  the  demand. (//)  And  when  a  deed  is  made  inter  jiar- 
tes,  (i.  e.  between  A  of  the  first  part,  and  B  of  the  second 
part,)  C,  a  stranger,  cannot  sue  on  a  covenant  therein,  thoug-h 
made  for  his  benefit. (/)  But  when  the  deed  is  no\.i7iler  fiartcs, 
he  may  sue  whether  it  be  indented  or  not.(^)  And  upon  a 
single  bond  or  deed  poll  reciting  that  the  obiigor  had  received 
of  A  40/.  for  the  use  of  C  and  D,  equally  to  be  divided,  to 
be  repaid  at  such  a  time  as  should  be  thought  best  for  the  pro- 
fit of  C  and  Z),  it  was  decided  *that  C  and  D  might  main;aiii  'J:  r^ 
separate  actions  for  their  respective  moieties. (7)  And  when  a 
contract  not  under  seal,  is   made   with  A,  to  pay  B  a  sum  of 


(c)  1  K:et,  4'jr.     S  T.    II.  .^>32.     1     2o.      .3  Lev.  1.39.      .1  B.  S;.  P.  1  iO.  ii 

SuuMi'.  1;'>;>.     7  Mod.  IIG.  a.     fi  \"iii.  Ahr.  til.  Coyciiaul,  .374.    7 

{il)  .S  T.  R.  3.30.      2  S:.up.<l.  47.  k.     East,  14S. 

B.  N.  P.  3G.      5  P.  Wilis.  18(3.  3  B.         (/)  2  Luv.  74.     3  Lev.  139.     3  P.  k 

k  P.  582.  P.  149.  11.  .1.     Cai-th.  7G,  77.     2  "Shy.l. 

(/)  1  Samul.  l.';3.  aiidn.  1.  Ca.  llfi.     2  Inst.  073.     C;>.  Lk.  2,35.  •» 

(5)  1  East,  407.  (;•)  U.  ibi<l. 

^//)  1  Lev.  235.     2In-t.  f.73  W'.v          f^l  Cro.  E),  720 


5  OF  THE  PARTIES  TO  THE  ACTION 

/  Plaintiffs,  money,  B  may  sustain  an  action  in  his  own  name  -.(in)  but  if 
the  promise  had  been  to  pay  ji  for  the  use  of  5,  ^  is  a  trus* 
tee,  and  By  having  no  legal  interest,  cannot  sue.(n) 

In  general,  a  mere  servant  or  agent,  with  whom  a  contract 
is  made  on  behalf  of  another,  cannot  support  an  action  there- 
on ;(o)  and  therefore  where  ^  agreed  in  writing  to  pay  the 
rent  of  certain  tolls,  which  he  had  hired,  to  the  treasurer  of 
certain  commissioners,  it  was  decided  that  no  action  for  the 
rent  could  be  supported  in  the  name  of  the  treasurer.(^)  But 
when  an  agent  has  any  beneficial  interest  in  the  performance  of 
the  contract  for  commission,  &c.  as  in  the  case  of  a  factor,  a 
broker,(9)  an  auctioneer,(r)  a  policy  broker,(s)  or  the  captain 
of  a  ship  for  freight,  he  may  sustain  an  action  in  his  own 
name  ;  in  each  of  which  cases,  however,  the  principal  or 
owner  might  sue.(?) 
Silly.    With         When  the  contract  was  made  with  several,  whether  it  were 

relerence     to 

the  number  of  under  seal  or  by  parol,  if  their  legal  interest  were  joint,  they 
vhowLiVjoin.  ^T^^^t  all,  if  living,  join  in  an  action  in  form  ex  contractu,  for 
*   6  the  breach  of  it,  though  the  covenant  or  contract  *with  them 

were  in  terms  joint  and  several  :{t)  the  reason  assigned  is,  that 
when  the  interest  is  joint,  if  several  were  to  be  permitted  to 
bring  actions  for  one  and  the  same  cause,  the  court  would  be 
in  doubt  for  which  of  them  to  give  judgment  ;(m)  therefore 
where  ^  declared  upon  an  account  stated  with  him,  of  monies 
due  to  him  and  a  third  person,  after  verdict,  judgment  was  ar- 
rested on  the  ground  that  the  promise,  whether  express  or  im- 
plied, must,  in  point  of  law,  be  considered  as  made  to  all  the 
persons  whose  debt  it  was,  and  therefore  they  all  ought  to  have 
joined  in  the  action. (jt) 


(w)  3  B.  &  P.  149.  n.  a.  1  B.  & 
P.  101.  n.  c.  B.  N.  P.  133,  4.  2  Lev. 
210.  1  Ventr.  318.  Sir  T.  Rarm. 
302.  Sir  T.  Jones,  102.  S.  C.  Cowp. 
437.  2  Ventr.  310.  1  H.  B.  239.  4 
Esp.  Rep.  204.  ^cc.  I  Vin.  Abr.  333 
to  337.  cited  in  3  B.  &  P.  149.  1 
Stra.  592.  1  Ventr.  6.  1  Powell  on 
Cont.  353.     B.  N.  P.  134.  cont. 

(»i)  2  Ventr.  310.  Carth.  5.  1 
Lev.  235.     1  B.  &.  P.  98. 

(o)  3  B.  &  P.  147.  1  H.  B.  84. 
Owen,  52. 

(f>)  3  B.  k  P.  147. 


ig)  1  T.  R.  112.  2  Esp,  Rep.  493. 
IH.  B.82.     7T.  R.  359. 

(r)   1  H.  B.  81. 

(s)  Park  oil  Ins.  403.     1  T.  R.  114. 

(0  1  H.  B.  81.  7  T.  R.  359,  360. 
n.  a. 

(<)  1  Saund.  155.  and  note  1.  I 
East,  497.  501.  One  of  such  parties 
may  lawfully  sue  without  the  consent 
of  the  other.     1  Lord  Raym.  380. 

(m)  Per  Lord  Kenyon,  in  1  East, 
501. 

(a:)  7  Mod.  1 16.    Yelv.  177. 


IN  FORM  EX  CONTRACTU. 


But  when  the  legally)  interest  and  cause  of  action  of  the 
covenantees  is  several^  each  may  sue  separately  for  his  particu- 
lar damage  although  the  words  of  the  covenant  are  joint 
only^Cz)  and  in  *case  of  a  joint  interest,  if  two  out  of  three 
parties  have  been  paid  their  shares,  the  third  may,  in  respect 
of  such  severance,  sue  alone  for  his  proportion. (a) 

In  the  case  of  a  deed,  if  one  or  more  of  several  obligees  or 
covenantees,  who  ought  when  living,  to  join,  be  dead,  or  did 
not  seal  the  contract,  that  fact  should  be  averred  in  the  decla- 
ration at  the  suit  of  the  others,  or  the  defendant  may  crave 
oyer  and  demur  ;(6)  but  if  the  plaintiff  be  prepared  to  prove 
the  death  of  the  party,  the  omission  of  the  statement  of  the 
death  in  the  declaration,  would  be  no  ground  of  nonsuit,  (f) 
In  all  cases  of  contracts,  if  it  appear  upon  the  face  of  the 
pleadings  that  there  are  other  obligees,  covenantees,  or  par- 
ties to  the  contract,  who  ought  to  be  but  are  not  joined  in  the 
action,  it  is  fatal  on  demurrer,(rf)  or  on  motion  in  arrest  of 
judgment,  or  on  error  ;(«')  and  though  the  objection  may  not 
appear  on  the  face  of  the  pleadings,  the  defendant  may  avail 
himself  of  it  either  by  plea  in  abatement,(/)  or  as  a  ground  of 


/.  Plaintifs. 


(jf)  1  East,  497.     2T.  R.  711. 

(j)  1  Saund.  153,  4.  n.  1.  I  East. 
497.  Cro.  El.  729.  2  Mod.  82.  The 
instance  put  in  1  East,  501.  will  illus- 
trate the  distinction  between  johtt  and 
several  interests.  If  one  by  inden- 
ture, demise  Black  Acre  to  ^  and 
White  Acre  to  £,  and  covenant  with 
theni  and  each  of  them,  (or  accord- 
ing to  2  .Saund.  153.  n.  1.  even  omit- 
ting these  words,)  that  lie  is  lawful 
owner  of  the  said  acres,  there  in  re- 
spect of  the  several  interests,  the  co- 
venant is  made  several ;  but  if  he  de- 
mise to  them  the  acres  jointly  then 
these  words  are  void  ;  for  a  man  by 
his  covenant  cannot,  unless  in  respect 
of  several  interests  make  it  first  joint 
and  then  several  by  those  or  the  like 
words.  In  the  case  of  -written  or 
other  contracts,  an  express  covenant 
or  stipulation  with  one  of  several  per- 


sons though  jointhj  interested,  may 
give  him  alone  a  right  of  action,  but 
in  the  case  of  contracts  raised  by  im- 
plication of  law,  or  in  the  case  of 
purchases  or  other  contracts  with 
partners  in  the  usual  course  of  trade, 
the  action  must  necessarily  be  in  the 
name  of  all  the  partners,  who  are  le- 
gally interested  in  the  performance  of 
the  contract.     2  T.  R.  282. 

(a)  Garret  v.  Taylor,  1  Esp.  Ni 
Pri.  117. 

(6)  2.Stra.  1140.  1  vSaund.  291.  )". 
154.  n.  1.     1  B.&  P.  74. 

(c)  5  Esp.  Rep.  32.  and  see  2  T.  R 
476.  n.  a.     1  Saund.  153.  n.  1.  291.  f. 

((/)  2  Stra.  1146.  1  East,  497.  I 
Saund.  153.  n.  1.  291.  f.  1  B.  &  P. 
07.  74. 

(e)  Id.  ibid.      ' 

(/)  Com.  Dig.  tit.  Abati-moTi^,  E 
12. 


JO'Il 


8*  Oi'  THE  PARTIES  TO  THE  ACTION 

I.  riuint/jjk  nonsuit  in  the  trial  upon  the  plea  of  ,Q;cneral  issue. (5-)  *HoW' 
ever,  when  a  partner  has  withdrawn  his  name  from  the  firm, 
although  he  may  continue  to  receive  part  of  the  profits  as  a 
dormant  partner,  it  is  not  a  ground  of  nonsuit  that  his  name  is 
not  joined  in  the  action. (A)  When  the  objection  appears  on 
the  face  of  the  pleadings,  in  order  to  obtain  costs,  it  is  some- 
times advisable  to  demur,  as  each  party  pays  his  own  costs 
when  the  judgment  is  arrested. (/) 

}Vho  7H(7(/  At  law  as  well  as  in  equity,  the  courts  will  not  take  cogni- 

sance of  distinct  and  separate  claims  or  liabilities  of  different 
persons  in  one  suit,  though  standing  in  the  same  relative  situ- 
ation .(A-)  If  (00  many  persons  be  made  plaintiffs,  the  action 
will  fail ;  and  if  the  legal  interest  of  two  or  more  be  several, 
and  there  be  no  express  contract  with  all,  they  must  sue  se- 
parately.(/)  Thus  where  A,  B  and  C  were  appointed  as- 
signees under  a  commission  of  bankrupt,  and  A  and  -C,  each 
paid  half  of  the  solicitor's  bill,  it  was  decided  that  A  and  B 
could  not  maintain  a.joi?it  action  against  C,  for  his  proportion  of 
the  money  paid,  but  must  each  bring  a  separate  action,  and  A 
and  B  having  sued  jointly,  were  nonsuited. (w)  But  when  the  in- 
terest is  joint  in  several,  they  may  and  ought  to  join.  Thus,  if 
./  and  B  in  the  last  case  had  borrowed  the  money  which  they 
paid  on  their  Joint  credit,  they  might  have  joined  in  the  *ac- 
lion  against  C.(«)  So,  where  A  and  B  brought  an  action  of 
assu7!i/isit,  and  declared  that  their  several  cattle  had  been  dis- 
trained, and  that  the  defendant,  in  consideration  of  10/.  paid 
b.ini  by  the  plaintiffs,  promised  to  procure  the  cattle  to  be  re- 
delivered to  them  by  such  a  time,  and  that  he  had  not  done  so, 


(5-)  1  Snuiul.   15.).  n.   1.291.   f.  g;.  aiipoars  10  be  advisable  v.hcre  there  is 

2  !Sti-a.  S20.     The  good   sense  of  this  a  <!cubt  as  to  the  number  of  the  pcr- 

rviic,  -vvhich,    as  we   shall  see  here-  sons  to  be  made  plaintifFs,  and  wlicu 

after,  docs  not  prevail   in  the  case  of  the  declaration   may  l)e  in  case,    tt> 

plaintiffs  in   torts,  or  of   several  de-  adojit  tliat  form  of  action. 

fendanis,  has   been   questioned  ;  but  (//)    2   Esp.   Rep.   408.      "   T.   I?, 

it  is  admitted  to  prevail.  See  1  Saund.  501.   11. 

291.  f.  g.      1   B.  k  P.  73.      C  T.  R.  (/)  Cowp.  407. 

770.     Jn  tiie  case  of  co-executors,  tl'.e  (A)  Per   Lord  Kcnyon,  Ch.  J.     J 

objection  can  only  be  taken  advantage  East,  220,  7. 

of  by  a  plea  in  abatement.     1  Saund.  (/)  3  B.  k   P.  235.      5   East,  225. 

291.  g.     .3T.  R.  538.  and  post  13.    As  2  T.    R.   282.  4.      5   T.   R.  7U.      2 

the  ojnission  of  a  party  is  no  g;rouiid  Saund.  IIG.  n.  2. 

'>f  nonsuit  in  an  action  in  form  ex  di'-  {ni)  3  B.  Sc  P.  23.i.     2  T.  R.  282. 

Hrto,  sec  C  T.  R.  7.*0.     3  East,  G2.  it  (/')  ^  1^»''>  --•'■ 


IN  FORM  EX  CONTRACTU.  9 

after  verdict  for  the  plaintiffs  it  was  objected,  in  arrest  of  judg-  /  piamtiffn. 
ment,  that  the  plaintiffs  ought  to  have  brought  several  actions 
because  the  promise  was  not  an  entire,  but  a  several  promise 
made  to  each  of  the  phintiffs  ;  but  it  was  adjudged  by  Rolle^ 
Ch.  J.  and  two  other  judges  against  one,  that  the  action  was 
well  brought  jointly  by  A  and  i?,  for  though  the  cattle  which  i 

belonged  to  -</ ought  to  be  restored  to  him,  and  the  other  cattle 
to  be  restored  to  B.,  and  so  the  thing  to  be  performed  was 
several  and  not  joint ;  yet  as  the  contract  and  ccmideration  were 
joint,  and  it  was  not  known  how  much  the  one  gave,  and  how 
much  the  other,  the  action  was  well  brought  jointly.(o)  If 
process  be  sued  out  in  the  name  of  two  plaintiffs,  the  declara- 
tion must  not  vary  therefrom,  nor  can  be  delivered  in  the 
name  of  one  only. (fi) 

Tenants  in  common  may  join  or  sever  in  an  action  on  a  con- 
tract relating  to  their  estate,  though  they  must  sever  in  an 
avowry  for  rent,  and  the  demand  must  be  de  una  medietate  of 
the  rent,  and  not  of  a  sum  of  money   generally,  *though  it  *    10 

may  be  the  exact  moiety .(/O  Joint  tenants  must,  in  all  cases, 
join  in  an  action  ejc  co7itractu.{q)  Parceners  also  must  join  in 
all  actions  concerning  their  estate,  and  ii  one  of  them  die, 
pending  a  real  action,  it  will  abate,  though  it  is  otherwise  in 
mere  personal  actions. (r) 

When  the  party,  with  whom   a  bond,  simple   contract,  or  •'^('ly.  \\!icii 
Other  mere  jiemonal  contract  was  made,  has  assigned  his  in-  the    contract 
terest  therein  to  a  third  person,  the  latter  cannot,  in  general,  sW„c!l'^''"   ''^^" 
sue   in  his  ov/n  name,  fiersonal  contracts  being  choscs  in  action, 
which  are  not,  in  general,  assignable  at  lav/,  so  as  to  give  the 
assignee  a  right  of  action  in  his  own  name,  but  he  must  pro- 
ceed in  that  of  the  assignor,  or  if  he  l)e  dead,  in  the  name  of 
his  personal  representativc.(5)     And  in  such  case,  though  the 
assignor  has  become  banicrupt,  the  action  must  be  in  his  name 


(o)  1  Roll.  Al>r.  .31.  p!.  f|.  Sty.  15G,  (9)  Co.  Lit.  ISO.  b.     Bac.  Abr.  (if 

1  jr.  20:>.     e  Sanud.  110.  b.  Joiut-tensmts,  K.     1  B.  Jsc  P.  73. 

ip)  1  B.  k  P.  J»3.  ()•)  ^■in.  Abr.    Pufccucrs,  T.     \i. 

( p')    Bin-.   Abr.  tit.    Joiut-lcnants  T.  Hardw.  398,  'J. 

and  Tenants  in  Common,    K.     5  T.  (.v)    4  T.   R.  3-10,1.      1  Eas(,  IOI-. 

K.  24'J.     I  Lev.   lO'J.     Sir  T.  Ilaym.  Chitty  on  Bills,  5  to  lu.     3\Viis.   2  7, 

80.     S.   C.      Kirkhani  ag;unst   Xtw-  1  Saund.  '210.  153,  ••. 
stGiid,  Esp.  N.  P.  117. 


10  OP  THE  PARTIES  TO  THE  ACTION- 

J.  Plairitifn.  and  not  in  thai  of  the  assignee  of  such  bankrupt,  who  can  only 
sue  upon  contracts  in  which  the  bankrupt  was  beneficially  in- 
terested.(^)  If,  however,  an  express  promise  or  contract  to 
pay  the  debt,  or  perform  the  contract,  be  made  to  the  assignee 
of  the  c/iose  in  action  in  consideration  of  forbearance,  or  in  re- 
spect of  any  other  new  consideration,  such  assignee  may  pro- 
ceed in  his  own  name,  declaring  upon  such  promise  and  new 

^-   U  consideration  :(w)  and  in  the  case  *of  a  negotiable  bill  of  ex- 

change, promissory  note,  or  check  on  a  banker,(;r)  bail  bond,(i/) 
or  replevin  bond,(2)  the  assignee  may,  by  the  custom  of 
merchants  in  the  first  instance,  and  by  express  legislative  pro- 
vision in  the  latter,  sue  in  his  own  name.  And  in  the  case  of 
a  covenant  running  with  the  estate  in  land,  &c,  an  assignee  of 
such  estate  should  be  the  plaintiff,  for  any  breach  of  such  cove- 
nant committed  after  he  became  legally  entitled  to  the  rever- 
bion,  and  this  without  even  alleging  or  proving  an  attorn- 
ment.(a)  And  in  such  case  the  assignor  cannot  distrain  for 
rent  due  before  the  assignment,  nor  can  he  sue  for  any  subse- 
quent breach. (6)  And  in  the  case  of  an  assignment  of  a  legal 
interest  by  operation  of  law,  as  in  the  instance  of  bankruptcy, 
to  the  assignees  of  a  bankrupt,  or  of  an  insolvent  debtor,  they 
should  be  the  plaintiffs  ;(c)  but  in  the  common  case  of  a  com- 
position deed,  the  trustees  can  only  sue  in  the  name  of  the  ori- 
gini.I  creditor,  in  whom  the  legal  interest  in  the  contract  still  is 
vested. (rf) 

4thi7.  When       When  one  or  more  of  several  obligees,  covenantees,  part- 
one  of    sevc-  ,  ,       .  .....  .       ,  ,       . 

ral    obiis^'ees    ners,  or    Others,  havmg  a  joint  legal  niterest  m  the  contract, 

^'^^  ^^  ''^^^'-  dies,  the  action  must  be  brought  in  the  name  of  the  survivor, 
and  the  executor  or  administrator  of  the  deceased  cannot  be 

*    12  *joined,  nor  can  he  sue  separately,  though  the  deceased  alone 

might  be  entitled  to  the  beneficial  interest  in  the  contract,  and 
the  executor  must  resort  to  a  court  of  equity,  to  obtain  from 


(0  3  B.  &  P.  40.     3  East,  317.  {a)  2  Wils.  143.      Bac.    Abr.    til. 

(«)  1  Sauntl.  210.  a.  1.      1  Ventr.  Covenant,    E.    5.    tit.   Debt,    C.      L 

153,  4.     ST.  R.   595.     Hard.  71.     4  Saund.    234.    n.  4.    241.    b.       Doug. 

Esp.  Rep.  204.  279. 

(x)  Chitty  on  Bills.  (6)  3  Lev.  154.      I  Saund.  241.  c. 

(</)    4  Ann.  c.  IG.    s.  20.      See  vol.  Gilb.  Debt,  384. 

2.  p.  162.  n.  g.  (c)  Post,  14,  15,  IC 

{z)    11  Geo.  II.  e.  19.  s.  23.      IB.  (J)  Ante,  10. 

^  P.  Col.n.  a.     2  vol.  168.  n.  in.  ' 


IN  FORM  EX  CONTRACTU.  12 

the  survivor  the  testator's  share  of  the  sum  recovered  : (a)  but  I.  Plaintiffs. 
if  the  interest  of  the  covenantees  were  several^  the  executor 
of  one  of  them  may  sue  though  the  other  be  living.((5)  In  an 
action  at  the  suit  of  a  surviving  partner,  he  may  include  a  de- 
mand due  to  him  in  his  own  separate  right.(f)  In  the  case  of 
a  deed,  we  have  seen  that  it  is  necessary  to  declare  as  surviving 
obligee,  i^c.{d)  but  in  other  cases  where  the  defendant  cannot 
crave  oyer  and  demur,  it  does  not  appear  to  be  necessary  to 
state  the  death  of  the  deceased  partner  in  the  declaration, 
though  it  is  more  usual  to  do  so.(e) 

In  the  case  of  a  mere  /^frso??a/ contract,  or  of  a  covenant  not  :>i!i!y.  la  tii» 
running  with  land,  if  it  were  made  only  with  one  person,  and  cu^jorb^'oi^ad- 

he  be  dead,  the  action  for  the  breach  of  it  must  be  brousrht  in  mimsuators, 

huiib,  ^c. 
the  name  of  his  executor  or   administrator,  in  whom  tlic  legal 

interest  in  such  contract  is  vested  ;(/")  and  if  it  were  made 
with  several  persons,  though  during  the  life  of  the  survivor  of 
them,  we  have  seen,  that  the  action  must  be  brought  in  his 
name, (5-)  yet  upon  his  death,  his  executors  or  aduunistrators 
*alone  can  sue,  and  the  personal  representatives  of  the  partner  *    13 

who  first  died  cannot  be  joined. (/i)  If  there  be  several  exe- 
cutors or  administrators,  they  ought  all  to  join,  though  some 
be  under  the  age  of  seventeen  years,  or  have  not  proved  the 
will,  or  have  even  refused  before  the  ordinary. (z)  If,  how- 
ever, only  one  of  several  executors  or  administrators,  bring 
an  action  either  of  debt  or  assump.-iit  or  in  tort.,  it  is  settled  that 
the  defendant  can  only  take  advantage  of  the  nonjoinder  of  the 
co-executor  or  co-administrator,  by  pleading  in  abatement  after 
oyer  of  the  probate  or  letters  of  administration,  that  the  other 
executor  or  administrator  therein  mentioned,  is  alive  and  not 
joined  in  the  action. (Xr)     This,  it  is  observable,  is  a  material 


(a)   1  East,  497.     Salk.  444.     Lord  {t)  5  Esp.   l{ep.   .3-2.      Comb.    383. 

Raym.  340.     Com.   Dig.    Merchants,  2  T.  R.  4rr.     6T.  It.  3fi5.     Sty.  50. 

D.     Vin.  Abr.  Partner,  D.     I  Show.  (/)  2  H.  Rl.  310.     3  T.  R.  393. 

188.  Comb.  474.  Curth.  iro.  Ante,  4.  (5)  Ante,  11. 

(6)  1  SaumJ.  153.  11.  1.    Burr.  1197.  (/t)  Ante,  11. 

Cro.  Eliz.  "29.  (j)    9  Co.   37.       3  T.   R.    553.        1 

(c)3T.  R.  433.      5T.  R.  49.3.      6  Saand.  291.  s?.     2  Saund.  209.  212.    C. 

T.   R.   582.     Sec   the  Precerlcnt,    -2  D.  tit.  .Vbatement,  E.  13. 

vol.  47.  {k)  1  Sa<ind.  291.  ^. 

(<i)  Ante,  7.     1  B.  it  P.  74. 

Vol.  I.                               [  2  ]  " 


1;^  OF  THE  PARTIES  TO  THE  ACTION 

/  Plaintiffs,  distinction  between  the  effect  of  the  nonjoinder  of  a  party  when 
he  sues  in  autre  droit,  and  when  in  his  own  right.  In  the  lat- 
ter case  we  have  seen  that  the  omission  would  be  a  cause  of 
nonsuit. (/)  An  executor  may  sue  as  such  upon  a  contract 
made  with  him  in  that  character,  as  for  goods  sold  by  him  as 
executor,  and  in  other  cases  when  the  sum  to  be  recovered 
would  be  assets  ^{m)  but  an  executor  cannot  sue  as  such  upon 
a  penal  statute. (?0 

In  the  case  of  a  covenant  or  contract  relating  to  and  running 
with  an  estate  in  larid,  &c.  of  which  the  covenantee  was  seised 

*    14  in  fce^  the  executor  or  *administrator  should,  under  the  32 

Hen.  VIII.  c.  o7.  sue  for  a  breach  in  the  covenantee's  life- 
time, unless  in  the  case  of  a  joint-tenancy,(o)  and  his  heir(/0  or 
devisee,  though  not  named  in  the  covenant  with  the  lessor,  See. 
will  respectively  be  the  proper  parties  to  sue  for  a  breach  of 
the  covenant  after  the  death  of  the  lessor.Cj')  Upon  the  death 
of  a  tenant  for  life,  his  executor  is  in  different  cases  authorised 
to  sue.(r)  If  an  executrix  or  administratrix  marry,  she  and 
her  husband  should  join  for  the  breach  of  any  personal  con- 
tract made  with  the  deceased  ;C«)  but  if  she  sue  alone,  the  de- 
fendant must  plead  in  ubatcmcnt,(0  and  when  a  bond  or  other 
contract  is  made  to  husband  and  wife  as  executrix  he  may  sue 
alone. (w) 

When  an  executor  dies  after  he  has  proved  the  will,  his  exe- 
cutor, or  the  executor  of  such  executor,  is  the  party  to  sue  on 
the  contract  made  with  the  original  testator,  and  may  declare 
without  noticing  the  first  executor  ;(.r)  but  an  administrator  of 
the  first  executor,  or  an  executor  of  the  first  administrator  can- 
not sue  in  that  character,  and  in  such  case  administration  de 
bonis  21071  must  be  obtained. (t/)  An  infant  sole  executor  cannot 
sue  till  of  age.(r)     In  a  declaration  by  an  administrator  dc  bonis 


(/)  Ante,  7.  ()•)  52  Hen.  VIII.    c.  3"       11  Geo 

Im)  6  East,  405.  II.  c.  19.  s.  15. 

(«)    Carth.   361.      Cro.  Eliz.  "66.  (s)  Com.  l')ig;.  Baron  k  Feme,  V. 

Com.  Dig.   Administrator,    B.  15.     2  (^ST.  R.  631.     1  Saund.  291.  g. 

H.  Bl.  311.  (u)  4  T.  R.  616.     1  Salk.  117. 

(o)  Bac.  Abr.  tit.  Debt,  C.  and  lit.  {x)  Toller,  1st  edit.  44.  26. 

Heir,  E.  (ij)  Tollei-,  84.     1  B.  &  P.  310. 

(p)  2  Lev.  92.  Bac.  Abr.  tit.  Heir,  E.  (r)  38  Geo.  III.  c.  87.     Toller,  367. 

((j)  2  Lev.  92.      Bac.  Abr.  tit.  Co- 
venant, E.  5. 


IN  FORM  EX  CONTRACTU.  14 

notit  a  count  may  be  added  on  a  promise  to  the  first  admini-    ^  Plaintiff-. 

s^ator.(a)  *    15 

*In   the   case   of   the    bankruptcy    of    a  person    who   is  6thly.  In  lUe 

case  of  bank- 
benencially,  as  well  as  legally  interested  in  the  performance  of  rupuy. 

a  contract  made  before  the  act  of  bankruptcy,  the  action  should 
be  brought  in  the  name  of  his  assignees  ;(6)  or  if  before  they 
are  appointed,  by  the  provisional  assignee, (c)  and  upon  the  re- 
moval of  one  of  several  assignees,  unless  it  be  followed  up 
by  an  actual  re-assignment  or  release  of  such  assignee  to  the 
remaining  assignees,  or  by  new  assignment  of  the  commission- 
ers, the  removed  assignee  should  join  in  the  action,  though  in 
an  action  of  trover  the  nonjoinder  can  only  be  pleaded  in  abate- 
ment.(rf)  When  an  action  is  commenced  in  the  name  of  the 
bankrupt  before  his  act  of  bankruptcy,  it  does  not  abate,  but 
the  assignees  may  proceed  in  his  name  ;(f)  and  when  a  con- 
tract is  made  with  a  bankrupt  after  the  commission,  and  be- 
fore he  obtains  his  certificate,  he  may  sue  unless  his  assignees 
interfere. (/) 

When  one  of  several  partners  becomes  bankrupt,  the  action 
must  be  in  the  name  of  the  solvent  partner  and  the  assignees 
of  the  bankrupt ;  and  in  such  case,  if  it  be  in  the  name  of  all 
the   partners,  the  bankruptcy  may  be  pleaded  in  bar.(^) 

When  a  contract  is  made  with  the  assigness  or  their  agent, 
after  the  bankruptcy,  they  need  not  sue  or  declare  in  the  cha- 
racter of  *assignees.(/i)  The  assignees  of  J,  a  bankrupt,  and  ■*  J  (J 
also  of  5,  a  bankrupt,  under  separate  commissions,  cannot  re- 
cover a  jovit  debt  due  from  the  defendant  to  both  the  bank- 
rupts, and  also  separate  debts  due  to  each  ;(z)  but  where  the 
j)laintiffs  sued  as  assignees  of  .'^  and  B,  and  also  as  assignees  of 
C,  for  a  joint  demand  due  to  the  three  bankrupts,  the  decla- 
ration was  held  sufficient. (A) 


(a)  7  T.  R.  182.  (/)  7  East,  .'IS.  8  T.  R.  140.  1  Esp. 

(h)  8  T.  K.  140.  7  East,  53.  2  H.  Bl.  Rep.  140.  170.     Peake,  I40.     Cullen, 

308.  444.     7  T.  R.  259.  13  Eliz.  c.  7.  412  to  41G. 

5  Geo.  II.  c.  30.  CuUcn,  175.  3  B.  &  (^)  12  Mod.  446.     8  T.  R.  140. 

P.  467.  40.  (Ji)  Covp.  569.     1  Esp.  Rep.  342. 

(0  5  Geo.  II.  c.  50.  s.  30,  31 .  (0  3  T.  R.  4.33.     3  B.  &.  P.  467. 

Id)  5  East,  407.  {k)  3  T.  R.  779.     3  13.  &  P.  409. 

(<?)  2  Wils.  372.      3  T.  R.  437       7 
East,  64. 


16  OF  THE  PARTIES  TO  THE   ACTION 

/  Plainiiffs.  The  legal  interest  in  the  chose  in  actioji  of  the  wife  of  the 
bankrupt  is  vested  in  the  assignee. (/)  When  a  bankrupt,  prior 
to  his  bankruptcy,  has  duly  assigned  his  beneficial  interest  in  a 
chose  in  actio?i  to  a  third  person,  the  action  must  be  in  the  name 
of  the  bankrupt,  and  not  of  the  assignees.(7«)  A  bankrupt  cannot 
niaintain  an  action  against  his  assignees  for  his  allowance  un- 
der the  statute  (?i) 

rthly.  Til  the        Xhe  legal  interest  of  an  insolvent  debtor  in  a  contract  is,  by 

i-HSt*  ot  Hii  in- 
solvent  debt-  the  express  provision  of  the  different  insolvent  acts,  vested  in 

the  persons  to  whom  his  estate  is  assigned  by  the  clerk  of  the 
peace,  and  who  are  expressly  empowered  to  sue.(o)  The  de- 
cisions relative  to  a  suit  in  the  name  of  the  assignees  of  a  bank- 
rupt, are  in  general  applicable  to  the  case  of  the  assignees  of 
-^    17  ^^'  insolvent  debtor.     The  assignees  of  a  person  *discharged 

under  the  lords'  act  are  also  authorised  to  sue.(/2) 
Sdilv.  Til  case  A  feme  covert  cannot  in  any  case,  sue  alone,  unless  her  hus- 
j^„^.  (",'\*"  band  be  civiliter  morluus,  or  transported  for  some  crime.(r) 
She  ?nai/  in  all  cases  join  in  action  with  her  husband,  when  the 
cause  of  action  would  burvive  to  her  ;  or  when  she  is  the  me- 
ritorious cause  of  action,  and  there  has  been  an  express  con- 
tract with  her ;  and  she  ?nust  join  when  the  cause  of  action 
would  necessarily  survive  to  her. 

As  chosen  in  action  of  the  wife  do  not  by  the  marriage  vest 
absolutely  in  the  husband  until  he  reduce  them  into  possession, 
in  general  he  cannot  sue  alone,  but  must  join  with  his  wife  in  all 
actions  ui)on  bonds,  and  other  personal  contracts,  made  with 
the  wife  bvfure  the  marriage,  whether  the  breach  Avas  before  or 
during  the  coverture,  and  also  for  rent  or  any  other  cause  of 
action  accruing  before  the  marriage,  in  respect  of  the  real  cs- 


(/)  3  Vcz.  J.  019.     1  P.  Wms.  2-i9.  cicnt ;  for  the  legality  of  a   ni.'\rriage 

(?h)  3  B.  k  P.  40.  3  East,  317.  An-  caiiuol  he  tried  in  personal  actions,  ex- 

te,  10.  cept  for  Crim.  Con.  as   it  may  in  aw 

(h.)  5  Geo.  II.  c.  30.  1  Esp.  I?ep.  390.  appeal   and  in   real  actions.      Andr. 

(o)  41  Geo.  IJl.  c.  70.  s.  15.  44  Geo.  'Ill,   S.Doug.  174. 

m.  c.  108.     3  B.  k  P.  326.  2  li.  Bl.  (r)  4  T.  K.  3Cl.   2  B.  k  P.  105.  4 

5G1.     2  East,  2.57.  Esp.    liep.   27.     Cro.   Jac.    319.    145. 

ip)  32  Geo.  II.  c.  28.  .Se.lwyn,  X.  P.  237  to  241.    Bac.  Abr 

{(j)  A  muniaijc   t/e  fi-i-ct')   i:<    suffi-  Bar.  8c  Ecnjc,  M. 


IX  FORIM  EX  CONTRACTU .  17 

tutc  of  the  wife.(«)     There  are  indeed  decisions  and  opinions    1.  Plaintiffs. 
which  appear  to  militate  against  this  rule  ;(?)  but  the  current 
of  authorities   seems   fully  to  establish  it,  and  it  is  observable 
that  it  prevails  also  in  equity  ;(w)  and  that  the  rule  is  the  *same  ^    18 

when  the  action  is  brought  on  a  contract  made  by  a/cme  whilst 
sole,  in  which  case  the  husband  cannot  be  sued  alone. (")  And 
when  the  wife  is  executrix  or  administratrix,  as  her  interest  is 
in  autre  droit,  they  must  in  general  join  in  the  aclion.(<zy)  But 
if  in  respect  of  a  contract  made  to  the  wife  whilst  sole,  the  party 
thereto,  after  the  marriage,  give  a  bond  to  the  husband  and  wife, 
or  in  respect  of  some  new  consideration,  as  forbearance,  &c. 
■make  a  parol  promise  to  the  husband  and  wife,  they  may  join, 
or  the  husband  may  sue  alone  upon  such  new  contract  ;(x)  and 
iif  such  bond  or  parol  promise  were  made  to  the  husband 
alone,  he  alone  should  sue  thereon,  the  wife  not  being  privy  to 
the  contract,(j/)  or  he  should  join  with  the  wife  on  the  original 
contract  in  cases  where  it  is  not  merged  by  a  higher  security  ; 
and  the  rule  is  the  same  when  the  J'crnc  is  executrix  or  admi- 
nistratrix, though  in  the  latter  case  it  is  said,  that  it  should  be 
averred  in  the  declaration  that  she  is  still  living.(r) 

In  general,  the  wife  cannot  join  in  any  action  upon  a  contract 
made  during  the  marriage,  as  for  her  work  and  labour,  goods 
sold,  or  money  lent  by  her  during  that  time  ;(a)  for  the  hus- 
band is  entitled  to  her  earnings,  and  they  shall  not  survive  to 
her,  but  go  to  the  personal  representatives  of  the  husband,  and 
she  could  have  no  property  *in  the  money  lent  or  the  goods  *    }  9 

sold. (6)  But  when  the  wife  can  be  considered  as  the  merito- 
rious cause  of  action,  as  if  a  bond  or  other  contract  under  seal  be 
made  to  her  separately  or  with  her  husband, (c)  or  in  the  case  of 

(i)  3  T.  R.  G31.  027,  8.    Com.  Dig.  {x)  4  T.  R.  616.  1  Salk.  117.  3  Lev. 

Bar.  &c  Feme,  V.      Bac.  Abr.  Bar.  k  403.  Carth.  462.  Ld.  Raym.  368.    Al- 

Feme,  K.     Moor,  422.     1   Roll.  Abr.  leyn,  36.     Cro.  Eliz.  61. 

437.  R.  pi.  3.    2Ves.  676,  7.     Bull.  X.  Q')  Cro.  Jac.  110.    Yelv.  84.   Lord 

P.  179.     lOVes.  J.  578.     3  Mod.  186.  Raym.  368.    Salk.  117.    Cartli.  462. 

2  Wils.  423.      1  H.  B.  109.  1  Saund.  210. 

(0  3Lev.  403.  Schv.  X.  P.  247.  Co.  (r)  Cro.  .lac.  110.     Yelv.  84.     Salk. 

Lit.  351.  a.   n.  2.      7  T.  R.  349.      1  117.     Lord  Raym.  368.     4  T.  R.  Gl6. 

Vern.  396.                                          •  {,-)  2  Bl.  Rep.   1239.     1  Salk.  114. 

(m)  2  Freem.  160.  Bac.  Abr.  Bar.  k  Com.  Dig.  Bar.  k  Feme,  W. 

Feme,K.  (i)  Id.  ibid.  Cro.  Jac.  644.  2  Wils. 

00  7  T.  R.  34S.  424.     2  Bl.  Rep.  1237.    Carth.  251. 

(vw)  Viii.  Abr.  Bar.  &  Feme,  Q,  22.  (c)  1  Stra.  230.     4  T.  R.  616.     Co. 

Com.  Dig.  Bar.  &  Feme,  V.  Lil.  351.  a.  n.  1.     1  Wils.  224.     Sel- 

wyii's  N.  P.  246,  7.     Alieyu,  36. 


19  OF  THE  PARTIES  TO   THE  ACTION 

/.  riamtij.'i-  her  personal  labour,  &c.  if  there  be  an  ex/iress  promise  to  her, 
or  to  her  and  lier  husband,  she  may  join  with  the  husband,  or  he 
may  sue  alone  ;(<:/)  and  it  has  been  holde^  that  she  may  be  joiu- 

,  cd  in  all  cases  upon  an  express  promise  to  her  :(e)  and  a  feme 

covert  executrix  must  join  in  an  action  upon  any  implied  pro- 
mise in  respect  of  the  estate  of  the  deceased,  as  if  money,  part 
of  the  assets  of  the  testator,  be  received  by  a  party  after  the  co- 
verture, in  which  case  the  h\isband  cannot  sue  alone  in  asstanfi- 
sit  as  for  money  had  and  received  to  his  use,  but  he  and  his  wife 
must  join,  and  declare  in  the  character  of  executrix,(y)  though 
we  have  seen  that  he  may  sue  alone  upon  an  express  contract 
made  with  him  in  consideration  of  forbearance,  Scc.(5")  For  rent 
or  other  cause  of  action  accruing  during  the  marriage  on  a  lease 
or  demise,  or  other  contract  relating  to  the  land,  or  other  real 
property  of  the  wife,  whether  such  contract  were  made  before  or 
during  the  coverture,  the  husband  and  wife  may  join,  or  he  may 

V-.  g/v  s^''^  alone  ;(/.)  and  when  a  lease  for  years  has  been  *granted  to 

husband  and  wife,  and  the  lessor  evicts  them,  they  may  join,  or 
the  husband  may  sue  alone  ;(/0  and  in  all  actions  for  a  profit,  &c 
accruing  during  coverture  in  right  of  the  rra/ estate  of  the  wife, 
they  may  join,  or  the  husband  may  sue  alone,  as  in  debt  for  not 
setting  out  tithes  payable  to  the  wife.(/)  But  in  these,  and  indeed 
in  all  cases,  if  the  wife  be  joined  in  the  action,  her  interest  must 
be  expressly  stated  in  the  declaration,  and  cannot  be  intended. (Ar) 
TI'iC  efTcct  of  joining  the  wife  in  an  action  when  the  husband 
might  sue  alone  is,  that  if  the  husband  die  whilst  it  is  pending,  or 
after  judgment,  and  before  it  is  satisfied,  the  interest  in  the 
cause  of  action  will  survive  to  the  wife,  and  not  to  the  executors 
of  the  husband,  though  if  he  sued  alone  she  would  have  had  no 
interest//)  In  the  case  of  the  cizil  death  of  the  husband,  or  even 


(f/)  Aileyii,  3C.     1  Saik.  114.     1  II.  (/,)  Stra.  230.     1  Wils.  224.  2  Lev. 

B.  lOS.  114.     2  B).   Rep.    1237,  8,9,  107.     Com.  Dig.  Bar.  S«  Feme,  X.  V. 

1240.     2  Wils.  424.     Com.  Dig;.  Ear.  {h)  Bro.  Abr.  Bar.  &  Feme,  pi.  25. 

&  Feme,  X.     Sehvyii's  N.  P.  243.  n.  2  Mod.  217.     Cro.  Jac.  599.     Bulstr. 

11.246.                     '  1G3. 

(e)  Cro.  El.  Gl.  Bae.  Abr.  Bar.  k  (/)  Com.  Dig;.  Bar.  &  Feme,  X.     2 

Feme,  K.  Wils.  423,  4.     Cro.  Jac.  399.     Bulstr. 

(/)  1  Salk.  2S2.     Com    Dig.  Bar  162. 

&;  Feme,  V.  i<i  W.  (k)  2  Bl.  Rep.  123G. 

is)  \\\U\  IS  (/)  Co.  Lit.  351.  a.  n.  1.  Cro  Tao.  77 

205.     2  Bl.  Rep.  1236. 


IN  FORM  EX  CONTRACTU.  SO 

where  he  has  been  transported  for  a  term  of  years,  the  wife  may  ^  Plaintiffs 
sue  alone  upon  any  contract  made  with  her  during  that  time, 
even  though  the  term  of  transportation  may  ha^-e  expired, 
if  he  have  not  returned  to  this  country. (m)  But  in  the  case  of  a 
feme  sole  trader,  according  to  the  custom  of  London^  she  can  only 
sue  and  be  sued  in  the  city  courts,  and  the  husband  must  be  join- 
ed for  conformity. (n) 

If  the  husband  survive/yo)  there  is  a  material  *distinction  be-  ^21 

tween  chattels  real  and  c/ioses  in  action.  The  husband  is  enti- 
tled to  the  chattel  real  by  survivorship,  and  to  all  rent,  &c.  ac- 
cruing during  the  coverture  ;  he  is  also  entitled  to  all  chattels 
given  to  the  wife  during  the  coverture  in  her  own  right,(/0 
though  not  to  her  rights  in  autre  droit.(rj)  And  choses  in  action, 
or  contracts  made  with  the  wife  before  coverture,  except  arrears 
of  rent,(r)  do  not  survive  to  the  husband,  and  he  must,  to  recover 
the  same,  sue  as  administrator  of  his  wife.(s)  And  if  pending 
an  action  by  husband  and  wife  for  such  chose  in  action.,  the  wife 
die,  the  suit  abates,  but  if  they  obtain  judgment,  he  may,  notwith- 
standing her  subsequent  death,  issue  execution,  or  support  an 
action  of  debt  on  such  judgment.(0 

If  the  ivife  survive,  she  is  entitled  to  all  chattels  real  which 
her  husband  had  in  her  right,  and  w  hich  he  did  not  dispose  of  in 
his  life-time,  and  to  arrears  of  rent.  See.  becoming  due  during  the 
coverture,  and  to  all  arrears  of  rent  and  other  choses  in  action  to 
which  she  was  entitled  before  the  coverture,  and  which  the  hus- 
band did  not  reduce  into  actual  possession,  and  even  to  a  debt  due 
upon  a  judgment  recovered  by  husband  and  Avife,  whether  ob- 
tained for  a  debt  due  to  the  wife  whilst  sole,(20  or  upon  a  contract 
made  *with  the  wife  during  coverture  where  she  is  the  merito-  ^  2:2 


(»0   4  Esp.  Rop.  2r.     2  B.  &  p.  (<?)  Id.  ibid.     4  T.  R.   616.     1  RoH. 

105.     Sclwvn's  N.  P.  23-to24l.  Abr.  889.  pi.  10.     1  And.  2'2.     Dver, 

(w)  1  B.  bt  P.  98.     4  T.  R.  361.  331.   a. 

(o)  As  to  the  effect  of  survivorship  (r)  32  H.  VIII.  p.  3"  s.  3. 

ill  general,  between  baron  and  feme,  (.s)  Cora.  Dig.  Bar.  k  Feme,  E.  3. 

see  Bac.  Abr.  tit.  Executors  k  Ad-  2  Bl.  Com.  435.     3  Mod.  186.     Ves. 

ministrators,  H.  4.      2  BI.  Com.  233  676.     R.  T.  Talb.  173. 

to  236.    Co.   Lit.   351.   n.    I.    Com.  (0  3  Mod.  189.  n.  g.  h. 

Dig.  Bar.  k  Ferae,  F.  1.  E.  2,  3.  Z.  (;/)  Com.  Dig.  Bar.  k  Feme,  F.  1. 

('3  A.)  2BI.  Com.  434.    Ves.  676.    1  Vern. 

(/*)  Com.  Dig.  Bar.  k  Feme,  E.  2,  396. 
3.  Z.    2  Bl.  Cora.  424.  Co.  Lit.  561, 
a.  n.   1. 


22  OP  THE  PARTIES  TO  THE  ACTION 

/.  Pluintiffs.  nous  cause  of  action, (t;')  and  to  all  rights  of  action  in  autre  droit 
as  executrix  or  administratrix  ;(x)  and  in  these  cases  if  the  hus- 
band die  pending  the  suit,  it  will  not  abate,  and  the  wife  may  pro- 
ceed to  judgment  and  execution,  the  death  of  the  husband  being 
suggested  upon  the  record. (,y)  And  when  -a  feme  executrix 
marries  a  debtor  to  the  testator,  the  right  of  action  is  only  sus- 
pended during  the  coverture,  and  if  she  survive  she  may  in  her 
character  of  executrix  sue  the  executors  of  the  husband. (z) 

The  consequences  of  a  mistake  in  the  proper  parties  in  the 
case  of  baron  andyi??^^,  are  that  when  a  married  woman  ought 
to  join  with  her  husband,  and  sues  alone,  the  objection  can  only 
be  pleaded  in  abatement,  and  not  in  bar,  though  the  husband 
might  sustaina  writof  error  ;(a)  and  if  she  marry  pending  the 
suit,  her  coverture  must  be  pleaded /jm/s  darrein  continuance  ;(i) 
but  when  2,  feme  improperly  sues  alone,  having  no  legal  right  of 
action  whatever,  she  will  be  nonsuited  ;(c)  or  if  she  improperly 
join  in  an  action  with  her  husband,  who  ought  to  sue  alone,  the 
plainiiff  may  demur,((/)  or  the  judgment  will  be  arrested,(c)  or 
reversed  on  a  writ  of  error.Cy )  And  if  the  husband  sue  alone, 
when  the  wife  ought  to  be  joined  cither  in  her  own  right,  or  in 

*   23  autre  droits  *he  will  be  nonsuited  \{g)  or  if  the  objection  appear 

on  record,  it  will  be  fatal  in  arrest  of  judgment  or  on  error, (//) 


n. 

Defendants.        The    action  upon   an    exfiress    contract,  must   m    general 

tJeeiAhc  0^7'-  be  brought  against  the  party  who  made  it  either  in  person  or 
ginal  parties ;  |^    aeent  ;f /")  but  difficulties  frcquentlv  occur  in  regard  to  im- 

and  with  refe-      /      f^         '\  y  i  -  ^ 

rence  to  the  fiUcd  contracts  which  are   created  by  law  in  respect  of  the  ex- 

ff  i^%o  tic  ^g.^j^^  ^|g|^^  ^^  duty;  in  these,  the  action  should  be  against  the 

person  who  is  subject  to  the  legal  liability  ;{k)  therefore  in  an 


(w)  2B1.  Rep.  1239.     Cro.  .Tan.  77.  (f)  4  T.  R.  361. 

205.     Co.  Lit.  351.  a.  n.  I.     1   Vcni.  (J)   1   Salk.  114.     1  Hen.  Bl.    108. 

396.  2  Wils.  424. 

{x)  4  T.  R.  616.     Com.  Dig.   Bar.  (<-)  Cro.  Jac.  644. 

&  Feme,  F.  1.  (/)  2  Bl.  Rep.  1236. 

()/)  8  ami  9  W.  TIL  c.  U.  s.  7.     R.  {g)  1  Salk.  '282.     Bac.  Ab.  B: .-.  & 

T.  Hardw.  '5'i7  to  5?9.  Feme,  K. 

(:)  Cro.  Eliz.  114.  (A)  1  Stra.  229.     Cro.  Jac.  442. 

(«)  3  T.  R.  631.  (0  8  East,  12. 

(0)  Bac.  Abr.  Abatement,  G.  \k)  2  H.  Bl.  563.     1  H.  Bl.  93. 


IN  FORM  EX  COXTRACTU.  23 

action  against  a  captain  of  a  troop,  for  goods  furiushed  to  ihe  // 

men  during  the  time  of  his  absence,  and  whilst  another  officer  ■''' 
was  in  the  actual  command  of  it,  and  by  whom  the  orders  for 
subsistence  were  issued,  and  who  received  the  subsistence  mo- 
ney from  government,  it  was  decided  that  the  defendant  being 
under  no  legal  liability,  and  not  having  made  any  express  con- 
tract, was  not  liable  to  the  action,  though  he  was  still  entitled  to 
a  profit  upon  the  sum  issued  by  government  on  account  of  the 
subsistence  money,  and  though  the  troop  still  continued  under 
his  military  orders. (/)  And  though  the  owner  of  a  ship  is  liable 
for  repairs  ordei-ed  for  him,  or  for  liis  benefit,  by  his  captain,  yet 
where  the  legal  title  to  a  ship  remained  for  a  month  after  the 
sale  thereof  in  the  vendor,  and  during  that  time  the  captain  by 
the  direction  *of  the  purchaser  ordered  repairs,  it  was  decided  *  24 

that  the  vendor  was  not  liable  for  the  amount.(»z) 

When  a  person  has  contracted  in  the  capacity  of  an  c^^Jit,  Against 

.  .        agents. 

and  that  circumstance  is  known  at  the  tmie  to  the  person  with 
"whom  he  contracted,  such  agent  is  not  in  general  liable  to  an 
action  for  the  nonperformance  of  the  contract,  even  for  a  de- 
ceitful warranty,(70  if  he  had  authority  from  his  principal  to 
make  the  contract  ;(o)  and  when  an  attorney  for  and  on  the  behalf 
o^  his  client  promises  to  pay  money,  he  is  not  personally  liable 
if  he  had  authority  from  his  client. (/;)  But  if  an  agent  cove- 
nant under  seal  for  the  act  of  another,  though  he  describe  him- 
self in  the  deed  as  contracting  for  and  on  the  part  and  behalf  ot 
such  other  person,((7)  or  if  he  accept  a  bill  of  exchange  ge- 
nerally, and  not  as  agent, (r)  he  is  personally  liable  and  may  be 
sued,  unless  in  the  case  of  an  agent  contracting  on  the  behuli 
of  government. (s)  So  if  a  person  acting  as  agent  do  not  dis- 
close his  principal,  at  the  time  of  making  the  contract,  he  will 
be  persoiially  responsible  ;(0  and  a  master  of  a  ship  is  in  gene- 
ral liable  for  necessaries  furnished  abroad, (w)  or  in  this  country, 


(I)  1  Ez^t,  1.55.  ru9.     S  East,  10.  (p)  3  P.  Wms.  277. 

(m)  S  East,  10.  (</)  5  Eust,  148. 

(»)  3  P.   Wms.  27^,  9.     1   1$1.  R.  (r)  Stra.  9.55.     I  H.  &  P.  .368. 

070.    2L(1.  Rayr.i.  1210.     Cowp.  505.  (v)  I  T.  R.  17-2.  074.     1  East,  135. 

Kurr.  1986.     1  T.  R.  181.  C/4.     4  T.  582. 

R.  553.     Peake,  C.  N.  P.  120.      Bac  (0  Ptakc,  C.  X.  P.   120.     1  T.  R 

Abr.  Action  on  c;.sc,  B.    Abbott,    1st  181.  7  T.  R.  350.     Biirr.  1921. 

edit.  229.  1  East,  507.  (ji)  Ctv.i>.  039.     7  T.  U.  312. 

(o)  3  P.  Wms.  279. 

Vol.  I.                             [  3  ] 


24  OF  THE  PARTIES  TO  THE   ACTION 

JI-  unless  thev  were  furnished  upon  the  credit  of  the  owners,(«>) 

Defendants  '  i      ,  -n      r  *i    j- 

*   QC  and  he  or  the  owners  may  be  sued  upon  the  bill  ot  *laaing,  or 

generally  for  the  loss  of  goods  ',{x)  and  a  policy  broker  alone 
can  be  sued  for  the  premiums  of  insurance. (y)  There  is  also 
a  material  distinction  between  an  action  against  an  agent  for  the 
recovery  of  damages,  for  the  nonperformance  of  the  contract, 
and  an  action  to  recover  back  a  specific  sum  of  money  received 
by  him  ;  for  when  a  contract  has  been  rescinded,  or  a  person 
has  received  money  as  agent  of  another  who  had  no  right  there- 
to, and  has  not  paid  it  over,  an  action  may  be  sustained  against 
the  agent  to  recover  the  money,  and  the  mere  passing  of  such 
money  in  account  with  his  principal,  without  any  new  credit 
given  to  him,  is  not  equivalent  to  a  payment  of  the  money  to  the 
principal ;  but  in  general,  if  the  money  be  paid  over  before  no- 
tice to  retain  it,  the  agent  is  not  liable, (2)  except  in  the  case  of 
an  auctioner  or  stake-holder,  who  are  considered  as  trustees  for 
both  parties,  and  are  bound  to  retain  the  money  till  one  of  them 
be  clearly  entitled  to  receive  it :  and  if  he  unduly  pay  it  over  to 
either  party  not  entitled  to  it,  he  will  be  liable  to  repay  the  de- 
posit or  stakc.(G) 
Partners,  to-  At  law  onc  partner  or  tenant  in  common  cannot  in  general 
mo'i)^  &c^*^'^  s^'C  ^^^^  copartner,  or  cotenant  in  any  action  in  form  ex  con~ 
tractu^{b)  but  must  proceed  by  action  of  account,(c)  or  by  bill 
-^   Qfi  i"  equity  ;  a  rule  founded  on  the  nature  of  the  situation  *of  the 

parties,  the  difficulty  at  law  of  adjusting  complicated  accounts 
between  them,  and  the  propriety,  arising  from  the  confidence 
reposed  by  the  parties  in  each  other,  of  their  being  examined 
upon  oath,  which  can  only  be  effected  in  a  court  of  equity. 
Therefoi-e  in  the  case  of  a  partnership,  one  partner  cannot  at 
law  recover  a  sum  of  money  received  by  the  other  on  account 
of  the  firm,  unless,  on  a  balance  struck,  that  sum  is  found  to  be 
due  to  him  alone. (rf)  And  in  assiimfuit  by  three  persons 
against  Z),  as  one  of  the  indorsers  of  a  promissory  note,  drawn 


(w)  Abbott,  1st  edit.  95.  (a)  Burr.  2639. 

(x)  Cwtli.  58.     Bac.  Abr.  tit.   Ac-  {b)  2  T.  R.  4r8.     2  B.   &  P.  124. 

tioiis,  B.  4  East,  144.     4  Esp.  Rep.  182. 

{y)  1  M.irsball,  204.  (f)  Bac.  Abr.  tit.  Account.    Vvllks.. 

(:)  Covp.  565.     Burr.  198C.    Lord  208. 

Raym.    1210.     4   T.   R.   553.      Stra.  (J)2T.  R.478. 
480.    Bull.  N.  P.  133.  10  Mod.  23. 


IN  FORM  EX  CONTRACTU. 


26 


by  £,  in  favour  of  one  of  the  plaintiffs,  and  the  defendant  and  I^ 

vit,  then  in  partnership,  and  by  them  indorsed  to  the  plaintiffs,  a  '?^'"""'^' 
plea  in  bar  that  C,  one  of  the  plaintiffs,  is  liable  as  an  indorser, 
together  with  the  defendant,  was  held  good  on  special  demur- 
rer ;(c)  and  in  an  action  by  several  as  executors,  a  plea  in  bar 
that  the  promises  were  made  by  the  defendants  jointly  with  one 
of  the  plaintiffs  is  sufficient.(/)  But  if  one  of  two  or  more 
partners  expressly  covenant  or  agree  to  account,  Sec.  and  neg- 
lect to  do  so,  an  action  may  be  supported  by  the  others  ;(,§•)  and 
if  an  account  be  stated,  and  one  partner  expressly  promise  to 
pay  the  balance  appearing  to  be  due  to  the  other,  the  latter  may 
sue  at  law  ;(A)  and  in  the  case  of  a  personal  chattel,  or  of  trees 
severed  from  the  land,  if  one  of  two  or  more  joint-tenants  or 
tenants  in  common,  by  the  sale  thereof,  convert  the  thing  into 
money,  the  *joint  interest  is  determined,  and  each  hath  a  sepa-  ?^    27 

rate  interest  for  a  sum  certain,  and  may  support  money  had  and 
received  against  the  other ;(/)  and  one  partner  may  maintain 
an  action  for  money  had  and  received  against  the  other  part- 
ner, for  money  received  to  the  separate  use  of  the  former, 
and  wrongfully  carried  to  the  partnership  account  ;(<-)  and  a 
partner  may  recover  money  paid  to  his  copartner  for  the  pur- 
pose of  being  paid  over,  as  the  plaintiff's  liquiddted  share  of  a 
debt  to  their  joint  creditor,  if  it  be  not  so  applied,  and  the  plain- 
tiff be  obliged  to  pay  such  joint  creditor :(/)  so  one  of  several 
co-sureties  in  a  bond,  who  has  been  obliged  to  pay  more  than 
his  proportion,  may  recover  against  any  one  of  the  others  his 
proportion  of  the  money  paid  under  the  bond  ;(m)  and  unless 
there  be  a  partnership,  one  of  several  parties  interested  in  pro- 
fits may  in  general  proceed  at  law  against  a  person  who  has  re- 
ceived his  share  :  thus,  if  a  sailor  engage  on  a  whaling  voyage, 
and  is  to  receive  a  certain  proportion  of  the  profits  of  the  voy- 
age in  lieu  of  wages,  when  the  cargo  is  sold,  he  may  maintain 
■m  action  for  his  wages  against  the  captain,  and  shall  not  be  con- 
sidered  as  a  partner  \(n)  and  when  the  agreement  between  two 
does  not  constitute  a  paitnership  as  between  themsehes,  but 


(e)  2  R.  k  P.  120.  {k)  2  T.  R.  476. 

(/)  '2  B.  &  P.  124.  n.  c.  1  Wcntv.         (/)  1  E:ist,  20. 
17,  18.  {m)  2  B.  &c  P.  258.  270.     8  T    R 


(5-)  2  T.  R.  482.     7  Mod.  11 G.  C14. 

(A)  2  T.  R.  482,  3.  47R.  (;i)  4  E^p  Rrp   IS? 

CQ  1  Wille.s,  209.     8  T.  R.  146. 


27  OF  THE  PARTIES  TO  THE  ACTION 

ft-  only  an  agi-eement  in  favour  of  one  as  a  compensation  for  trouble 

Defendants-  i  v      ,  ~  ,  •    , 

*  ';og  ''^^^  credit,  he  *may  sue  the  other,  though  as  between  third  per- 

sons both  might  be  liable  as  partners. (o) 
2aiy.  With  When  there   are  several  parties,  if  their  contract  wcvc  joint 

\hv^mmiber  oi  ^^^>'  '-^^lould  be  made  dcfcndants,(/i)  as  if  one  of  them  be  dead 
the  derend-      jt  is  more  proper  to  stale  in  the  declaration  that  the  contract  was 

ants,  ;ind  who  \      * 

m.vsr  be  jolii-  made  by  him  as  well  as  by  the  survivors  ;(</)  it  seems,  however, 
that  no  advantage  can  be  taken,  though  the  declaration  do  not  no- 
tice the  deceased. (r)  A  contract  made  by  two  partners  to  pay  a 
sum  of  money  to  a  third  person  equally,  out  of  their  own  private 
funds,  is  a  joint  contract,  and  they  should  be  jointly  sued  upon 
it  ;(s)  but  if  ji  lease  for  years  to  B  and  C,  rendering  rent,  and 
C  assign  ins  moiety  to  D,  A  may  sue  B  and  D  jointly  or  se- 
vci'uily,  at  his  election,  for  rent  in  arrear  :{t)  and  where  two  se- 
veral tenants  of  a  farm  agreed  with  a  succeeding  tenant  to  refer 
certain  matters  in  difference  respecting  the  farm  to  arbitration, 
and  jointly  and  severally  promised  to  perform  the  award,  and 
the  arbitrators  awarded  that  each  of  the  two  should  pay  a  cer- 
tain sum  of  money  to  the  third,  it  was  decided  that  they  were 
liable  to  be  sued  jointly  for  the  sums  awarded  to  be  paid  by 
each,  because  by  the  terms  of  the  agreement  they  had  promi- 
sed jointly  as  well  as  severally,  Avhich  made  each  of  them  liable 

*  29  ^'-^^'  ^'^^   ^'"^  °^  ^'^^  *other.(zO     Parceners  should   before  par- 

tition be  jointly  sued,  though  they  be  entitled  to  the  estate  by 
different  descents. (ly) 

With  respect  to  the  mode  of  taking  advantage  of  the  omis- 
sion of  a  party  who  ought  to  be  made  a  codefendant,  there  is  a 
material  distinction  betvveen  this  case,  and  that  of  coplaintiffs. 


(o)  4  East,  144.  sIicm    when  Hie  action  shoukl  be  joint 

{p)  I  Suund.  153.  n.  1.  291.  b.  n.  4.  or  several.     To  state  all  the  cases  up- 

{q)  1  Saiinil.  291.  n.  2.  Stales,  50.  on  this  subject,  would  be  to  investi- 
G  T.  R.  3G5.  2  T.  R.  477,  8.  See  the  gate  the  nature  and  properties  of  con- 
form, vol.  2.  4".  tracts,  a  pui-suit  foreign  to  this  trea- 

(r)  Comb.  383.     5  Esp.  Rep.  31.    1  tisc.     As  to  when  a  contract  is  joint 

T.  R.   479.     Vin.   Abr.    Partner,  D.  and  when  several,  see  Bac.  Abr.  tit. 

ace.      G   T.   K.  365.      2  :VIod.   280.  Obligation,  vol.  5.  D.  4.  &c  vol.  7.  Obli- 

Montr.  gatioH,  Bl.  And  as  to  what  constitutes 

(.t)  1  H.  Bl.  236.  a  partnership,  see  1  H.  Bl.  Z7.    2  H. 

(0  Palmer,  283.    2  Vin.  Abr.  6C,  7.  131.  236.    4  T.  R.  720.  4  East,  144. 

2  Saand.  182.  n.  I.     Cro.  Jac.  411.  {-iu)  Vin.  Abr.  tit.  Actions,  Joinder, 

(;■■)  7  T.  R.  352.     2  Saund.  Gl.  li.  n.  D.    d.    Parceners.     R,    T.    Hardw. 

9.      These  instances   AviU  suffice  to  598,  9. 


IN  FORM  EX  CONTRACTU.  29 

\Vc  have  seen  that  if  a  person  Avho  oueht  to  join  as  plaintiff  be    „  ^^J- 

*  DefendaniS. 

omitted  and  the  objection  appear  upon  the  pleadings,  the  de- 
fendant may  demur,  move  in  arrest  of  judgment,  or  bring  a  writ 
of  error ;  or  if  the  objection  do  not  appear  on  the  pleadings,  the 
plaintiff,  except  in  the  case  of  co-executors  or  co-adminislra- 
tors,  will  be  nonsuited.(a:)  But  in  the  case  of  defendants,  if  a 
party  be  omitted,  whether  he  be  sued  upon  a  personal  contract, 
or  as  pernor  of  the  profits  of  a  real  estate,  as  indebt  for  a  rent- 
charge,(i/)  the  objection  can  only  be  taken  by  plea  in  abatement 
verified  by  affidavit,(2)  unless  it  appear  on  the  face  of  the  decla- 
ration, or  some  other  pleading  of  the  plaintiff,  that  the  party 
omitted  is  still  livingy  as  well  as  that  he  jointly  contracted,  in 
which  case  the  defendant  may  demur,  or  move  in  arrest  of  judg- 
ment, or  sustain  a  *writ  of  error.(a)  There  is,  however,  this  ob-  ^  ^ 
jection  in  tliC  case  of  a  joint  contract  to  the  non-joinderof  one  or 
more  of  the  several  parties  liable  ;  that  if  judgment  be  obtain- 
ed against  one,  in  a  separate  action  against  him  on  such  con- 
tract, the  plaintiff  cannot  afterwards  proceed  against  the  parties 
omitted,  and  consequently  loses  their  security. (^) 

When  the  contract  is  several,  as  well  as  joint,  the  plaintiff  is 
at  liberty  to  proceed  against  the  parties  jointly,  or  each  sepa- 
rately, though  their  interest  be  joint.(c)  But  if  there  be  more 
than  two  parties  to  a  joint  and  several  contract,  as  where  three 
obligors  are  jointly  and  severally  bound,  the  plaintiff  must 
either  sue  them  all  jointly,  or  each  of  them  separately, (rf) 
though  if  two  only  be  improperly  sued,  the  objection  must  be 
taken  by  plea  in  abatement  ;(e)  and  where  parties  are  sued  se- 
parately, the  breach  may  be  assigned  in  both,(/)  and  a  reco- 
very, and  execution  against  the  body  of  one,  producing  no  ac- 


(x)  Ante,  7.  and  note  g.  313.     6  Enst,  S5.     1  Saund.  235.  a.  n-. 

(,(/)  1  Saund.  284.  n.  4.  8.     Rut  this  seems  an  exception. 

(r)  1  Saund.  154.  n.  1.  201.  b.  n.  4.  (b)  Ci-o.   Jac.   73,    4.     Com.   Di- 
ke.    5T.  R.C51.     1   East,  20.    4  T.  Action,  K.  4. 
R.  725.     2B1.R.  947.  (c)    1    Saund.    153.   n.  1.     2  Burr. 

(«)   1   Saund.  291.  b.  Sec.  n.  4.  154.  12!.'0.     Poph.  ICI. 

u.  1.     1  B.  k  P.  73.     7  T.  I?.  590,  7.  {d)  3  T.  R.   782.     Bac.  Abr.  Obli- 

In  general  a  pei-son  is  presumed  to  be  gallon,  D.  4.     1  Saund.  291.  e.  2  Yin 

living  until  it  be  proved   that  he  is  Abr.  OS.  pi.  7. 

dead,  unless  several  years  have  elap-  (<?)  1  Saun<!.  201.  e. 

sed  .since  he  was  heard  of,  2  East,  {/)  1  Str.  553.     GRurr.  lJ/5 


I'lijini. 


30  OF  THE  PARTIES  TO   THE  ACTION 

JDeftdants  ^"'^^  satisfaction,  will  be  no  bar  to  an  action  against  the  other  %{g) 
and  when  the  contract  is  joint  and  several,  and  the  debt  or  de- 
mand considerable,  it  is  most  advisable  to  proceed  separately ; 
for  if  all  the  parties  be  joined,  and  one  of  them  die  after  judg- 

•*   31  ment,  and  before  *execution,  the  remedy  at  law  against  the  as- 

sets of  the  deceased  is  determined  ;(/i)  and  in  the  case  of  the 
death  of  a  surety,  even  a  court  of  equity  will  not  in  all  cases  re- 
lieve ;(2)  whereas,  if  the  plaintiff  proceed  separately,  the  exe- 
cutor of  the  deceased,  as  well  as  the  survivor,  severally  con- 
tinue liable. (A) 

Who  jrimj  be  It  has  already  been  observed  that  at  law  as  well  as  in  equity, 
the  courts  will  not  take  cognizance  of  distinct  and  separate 
claims  or  liabilities  of  different  persons  in  one  suit,  though 
standing  in  the  same  relative  situations ;(/)  and  therefore  in  an 
action  ex  contractu  against  several,  it  must  appear  on  the  face 
of  the  pleadings,  that  their  contract  was  joint,  and  that  fact 
•must  also  be  proved  on  the  trial ;  and  if  too  many  persons  be 
made  defendants,  and  the  objection  appear  on  the  pleadings, 
either  of  the  defendants  may  demur,  move  in  arrest  of  judg- 
ment,(?«)  or  support  a  writ  of  error  ;  and  if  the  objection  do 
not  appear  upon  the  pleadings,  the  plaintiff  may  be  nonsuited 
upon  the  trial,  if  he  fail  in  proving  a  joint  contract  '.{n)  for 
though  in  actions  inform  ex  delicto.,  as  in  trespass  or  case,  one 
defendant  may  be  found  guilty,  and  the  other  accjuitted ;  yet  in 
covenant,  debt,  or  other  action  mform  ex  contractu^a.  verdict  or 
judgment  cannot  in  general  be  given  in  a  joint  action,  against 
one  defendant  without  the  other  ;(o)  and  therefore  in  an  action 
of  assimipsit  against  three,  two  only  of  whom  were  liable  to  be 
sued,  *and  the  party  not  liable,  together  with  one  of  those  who 
was  liable,  suffered  judgment  by  default,  and  the  other  party 
pleaded  the  general  issue,  a  verdict  was  found  for  the  defend- 
ants on  the  ground  that  the  plaintiff  having  declared  as  upon  a 
promise  by  three  defendants,  consequently  to  entitle  himself  to 


ig)  Cro.  Jae.   74.      5   Co.    8G.     3  (/.^)  2  Burr.  1100. 

Mod.  87.     2  Shew.  494.  (/)  Ante,  S.     1  East,  226,  7. 

(A)  Com.  Dig.  Action,  K.  4.     Bac.  (m)  7  T.  R.  352. 

Abr.  ObligaUon,  D.  4.  vol.  5.  &  vol.  7.  («)  I  East,  52.     1  Lev.  63.  1  Esp. 

tit.  Obligation,  B.  Rep.  363.     Bull.  N.  P.  129.     1  H.  BJ 

(0  W.  ibit).    d  Vez.  J.  ?P0.     2  Vez.  37. 

S.  106,  171.  (o)  1  Lev,  CS, 


oo 


IN  FORM  EX  CONTRACTU.  52 

recover,  he  should  have  proved  a  promise,  either  express  or  ^^-  ^^^^ 
implied,  binding  all  the  three  :;/0  and  where  the  plaintiff  de- 
clared on  a  joint  and  several  promissory  note,  ac^aiiist  all  the 
makers  jointly,  and  one  of  them  by  his  plea,  admitted  his  hand- 
writing to  the  note,  but  the  other  defendants  pleaded  non  cs- 
suinfisit^  the  plaintiff  was  nonsuited  for  not  proving  the  hand- 
writing of  the  defendant,  who  by  his  plea  had  so  admitted  it ;[?) 
and  though  a  contract  be  proved  to  have  been  in  fact  made  by 
all  the  defendants,  yet  if  in  point  of  law  it  is  not  obligatory  either 
on  the  ground  of  infancy,  coverture.  Sec.  at  the  time  it  was 
entered  into,  the  plaintiff  would  be  nonsuited,(r)  and  having 
ommenced  his  action  against  too  many  parties,  he  could  nol 
:'.void  the  objection  by  entering  a  nolle  firosequi  as  to  the  infant 
or  fane  covcrt,{fi)  but  must  discontinue  and  commence  a  fresh 
action,  omitting  such  parties,  and  in  wliich,  should  the  de- 
fendants plead  the  non-joinder  of  the  infant,  oy  feme  covert 
in  abatement,  the  plaintiff"  may  reply  the  infancy  or  coverture. (if) 
But  when  one  of  the  defendants  is  discharged  from  lia- 
bility by  matter  axibaequent  to  the  making  *of  the  contract, 
as  by  his  bankruptcy  and  certificate,  the  failure  on  the 
trial  as  to  him  on  such  ground  does  not  preclude  the  plain- 
tiff from  recovering  against  the  other  parties,  and  should 
he  plead  his  certificate,  a  nolle  prosequi  as  to  him  may 
be  entered :(//)  and  in  debt  on  a  penal  statute  at  the  suit  of  a 
common  informer,  or  of  the  party  aggrieved,  for  an  oiTence 
which  may  be  committed  by  several  jointly,  the  plaintiff  Avill 
succeed  if  he  prove  either  of  the  defendants  to  be  liable,  for 
in  this  case  the  action,  though  in  form  ex  ccniractu^  is  founded 
upon  a  tort  :(%v)  so  against  executors,  though  the  plaintiff  may- 
fail  as  to  one,  on  the  plea  of  filene  adniinistravit,  he  may  re- 
cover against  the  other,  and  the  defendant  who  is  acquitted,  is 
not  even  entitled  to  costs. (x) 


ip)  I    East,  5-2.     3  T.  R.    CG-2.     1  (/)  3  Esp.  Rop.  70.     Vin.  Abr.  tit. 

Lev.  63.  Actions,  Jf>i;i(ler,  D.  d.  ]il.  8. 

(7)  1  Esp.  Rep.  1.35.  (,/)   1  Wils.  89.     1  Saiind.  20r.  a.  b 

()•)  3  E^p.  Rep.  76.     Vin.  Abr.  Ac-  3  Esp.  Rep.  77. 

tion,  D.  d.  pi.  S.  (^y)  Carth.   361.      2  E.nst,  SCD.      1 

(.9)  3  Esp.   Rep.   76.     1   Wils.  69.  New  Rep.  24.S.     3  East,  62. 

Tivid's  Prac.  631.  (x)  Tidd's  Prac.    3d  edit.  001.     1 

Saund.  207.  a.-b. 


33  OP  THE  PARTIES  TO  THE  ACTIOK 

IT.  As  the  consequences  of  the  joinder  of  too  many  defen(3ants, 

jtiiic  1  s.  -jj  ^j^  action  in  form  e.r  cmtractu,  arc  in  general  so  important* 
it  is  advisable  in  cases  of  doubt  as  to  the  proper  parties  to  be 
made  defendants,  to  frame  the  declaration,  when  practicable, 
in  case^  in  which  form  of  action,  as  we  shall  hereafter  see,  the 
joinder  of  too  many  defendants,  though  for  the  breach  of  u 
contract,  is  in  general  no  ground  of  objection  Uj/)  or  if  the 
plaintiff  be  compellable  to  declare  in  an  action  in  form  ex  coit- 
iractut  it  is  most  advisable,  in  such  case  of  doubt,  to  proceed 
only  against  those  defendants  who  are  certainly  liable,  in  which 
case  we  have  seen  the  non-joinder  can  only  I)e  taken  advantage 
^'   34  of  by  a  plea  in  abatement. (z)     *On  process  by  bill  or  latitat  in 

K.  B.  or  on  common  process  in  C.  P.  not  bailable,  the  writ  may 
be  against  four  defendants,  and  the  plaintiff  may  declare  and 
proceed  against  each  separatcly,C«)  but  on  bailable  process 
agauist  several,  the  declaration  must  be  against  n\\.(l)) 
SHly.  In  case  In  general  in  the  case  of  a  mere  ficrsonal  contract,  the  action 
credit  "^and  ^0^'  '•^^^  breach  of  it  cannot  be  broii;j,ht  against  a  person  to  whom 
of  covenants  ^|jg  contracting  party  has  assinncd  his  interest,  and  the  original 
Innd,  iiu.  pru'ty  alone  can  be  sued  :  thus  if  one  demise  cattle  or  goods, 
and  the  lessee  covenant  for  himself  and  his  assigns,  at  the  end 
of  the  term  to  deliver  such  cattle  or  goods,  and  the  lessee  as- 
sign the  cattle,  Sec.  this  covenant  will  not  bind  the  assignee,  for 
it  is  merely  a  thing  in  action  in  the  personalty,  and  wants  such 
privity  as  gxists  between  the  lessor  and  Icosce  of  lands  in  re- 
spect of  the  reversion  ;(f)  and  if  tvvo  partners  dissolve  their 
partnership,  and  one  of  them  covenant  with  the  other  that  he 
will  pay  all  the  debts,  a  creditor  must  nevertheless  sue  both. 
There  may,  however,  in  some  cases,  be  a  change  of  credit^ 
by  agreement  between  the  parties,  so  as  to  transfer  the  liability 
of  the  original  contracting  party  to  another,  or  to  one  only  of 
the  original  parties  ;(t/)  thus  in  the  case  of  a  tenancy  from  year 
to  year,  if  the  landlord  accept  another  person  as  tenant  in  the 
voom  of  the  former  tenant,  without  any  surrender  in  writing, 


(.7/)  3  Ei.st,  62.  (r)  3  "Wils.  27.     4  T.  R.  720.  726. 

(r)  Ante,  29.  {d)  1  Xew  Rep.   124.   131.     4  Esp, 

(fi)    4  East,  589.      IC.   &   P.  49.  Rep.  91,  2.    5  Esp.  Rep.  122.     ST.  K. 

Ti(Ws  Prac.  80.  451.    3  East,  147. 

(6)  Id.  ibid.     5  T.  R.  722.    Tidd's 
Prac.  164. 


IN  FORM  EX  CONTRACTU.  34 

such  acceptance  may  be  a  dispensalion  of  any  notice  to  quit,  //. 

...  *,        ,•     ,  1    /-  X         1      1  Defendants. 

and  the  original  tenant  may  *be  discharged  ;(?)  and  where  two  ^    o  c 

partners  gave  a  joint  bill  of  exchange  for  a  partnership  de- 
mand, and  when  the  bill  became  due,  the  holder  took  the  se- 
parate bill  of  one,  it  was  decided  that  the  other  was  thereby 
discharged. (y)  So  if  one  take  the  security  of  the  agent  of 
the  principal,  with  whom  he  dealt  unknown  to  the  principal, 
and  give  the  agent  a  receipt  as  for  the  money  due  from  the 
principal,  in  consequence  of  which,  the  principal  deals  differ- 
ently with  his  agent  on  the  faith  of  such  receipt,  the  principal 
is  discharged,  although  the  security  fail,  though  if  the  princi- 
pal were  not  prejudiced,  he  would  not  be  discharged.(  ^) 
But  where  one  of  three  joint  covenantors  gave  a  bill  of  ex- 
change as  a  collateral  security,  not  accepted  in  satisfaction  of 
the  debt,  the  judgment  recovered  on  the  bill  was  decided  to  be 
no  bar  to  an  action  of  covenant  agdnst  the  three. (A)  The 
consignor  of  goods  may  be  primarily  liable  for  the  freiglit,  but 
the  consignee,  if  he  accept  the  goods  in  pursuance  of  the  usual 
bill  of  lading,  may  be  sued  for  the  same,  unless  it  be  known  to 
the  master  of  the  ship,  that  he  acted  only  as  agent  for  the  con- 
signor.(2) 

Upon  a  covenant  running  with  the  land  which  must  concern 
real  property,  or  the  estate  therein,(A-)  the  assignee  of  the 
lessee  is  liable  to  an  action  for  a  breach  of  covenant  after  the 
assignment  of  the  estate  to  him,(/)  and  though  he  have  not 
taken  possession  ;(???)  but  his  liability  ceases  Avhen  he  assigns  ^   3Q 

his  interest,  though  even  purposely  to  an  insolvent  person. (n) 
And  if  the  covenant  be  merely  collateral  and  personal,  an  as- 
signee is  not  in  any  case  liable,  and  the  lessee  alone  can  be 
sued.(o) 


(e)  2  Esp.  Rep.  505.  (/)   Bac.  ALr.  lit.  Covenant,  E.  34. 

(/)     4  Esp.   Rep.    91,  2.       5  Esp.  3  Wils.  25.     2  Sauiid.  304.  u.  12. 

Rep.  122  (m)  Woodfall,    L.   k    T.   2d  edit 

(5)  3  East,  147.     8T.  R.  451.  113.      7T.R.312.      ate.   Doug.  438. 

(A)  3  East,  251.     ST.  R.  451.  cont.                  V. 

(0    Abbott,  Isl  edit.  229.      1  East,  («)    1  B.  k  P.  21.       Bac.  Abr.  tit. 

507.  Covenant,  E.  4. 

(A)  3  \V;i3.  29.     2  H.  Bl.  133.  (0)    Buc.  Abr.  tit.  Covenant,  E.  3, 

4.     3  Wils.  25.     2  Saund,  304.  n.  12. 

Vol.  I.  [  4  ] 


56  OF  THE  PARTIES  TO  THE   ACTION 

Jt-  When  there  is  an  ex/:ress  covenant  in  a  lease  to  pay  rcftt  or 

periorm  any  other  act,  the  oni;inal  lessee,  and  his  personal  re- 
presentatives having  assets,  are  liable  to  an  action  of  covenant 
during  the  lease,  notwithstanding  before  the  breach  complained 
of,  the  interest  in  the  lease  may  have  been  assigned,  and 
though  the  lessee  may  have  become  bankrupt,  or  an  insolvent 
debtor,  or  the  lessor,  or  the  assignee  of  the  reversion  may 
have  accepted  rent  of  the  assignee. (/j)  But  an  action  cannot 
be  supported  against  those  parties  for  a  breach  of  a  covenant 
implied  by  law,  committed  after  acceptance  of  rent  from  the 
assignee  ;(y)  nor  can  the  lessor  after  such  acceptance  of  the 
assignee,  mamtain  an  action  of  debt  against  the  lessee  or  his 
representatives  even  upon  an  express  covenantor) 

An  under  lessee  who  has  not  the  whole  of  the  lessee's  inte- 
rest assigned  to  him,  cannot  be  sued  by  the  original  lessor,  for 
any  breach  of  covenant  contained  in  the  original  leases,  though 
for  voluntary  and  not  mere  ])ermissive  waste,  he  would  be  lia- 
ble to  an  action  on  the  case.CO 
^    57  *^n  ^'i*^   case  of  a  j'jint   contract,  if  one   of  the  parties  die, 

4thlv.    A\  lien  j.jg  executor  or  aduiiiiistrator  is  at  luw  discharged  from  liability, 

One  of  several  ,  .  •' 

olili.aors,  Jicc.  and  the  survivor  alone  can  be  sued,;M)  and  if  the  executor  be 
sued,  he  may  cither  plead  the  survivorship  in  bar,  or  give  it  in 
evidence  under  the  general  issue  •■,{nv)  but  in  equity  the  exe- 
cutor of  the  deceased  party  is  liable,  unless  in  some  instances 
of  a  surety  :( i)  and  if  the  contract  were  several^  or  joint  and 
several,  the  executor  of  the  deceased  may  be  sued  at  law  in  a 
separate  aclion,(j/)  but  he  cannot  be  sued  jointly  with  the 
survivor,  because  one  is  to  be  charged  de  bonis  testatorisy 
and  the  other  de  bonis  /!ro/iriis.{z)  It  is  usual  though  not  ne- 
cessary to  declare  against  the  survivor  as  such,  noticing  the 
death   of    his    co-obligee    or  copartner  ;(a)  and  in  an    action 


(/'I  1  Siiiind.  i2il.  n.  5.     1  T.  R.  9-'.  D.  4.      Vin.   Abr.  Obligation,   P.  20. 

r  T.   K.   3i5.      H.Bl.  433.     4  T.  K.  Carth.  105.     2  Run-.  1196. 

94.  100.        But'.  Abr.  tit.    Covenant,  ('.(•)  5  East,  201. 

E.  4.  (.'■)  Bae.  Abv.  Obligation,  vol.  7.  2 

(>7)  1  Saund.  241.  b.      4  T.  R.  98.  Vcni.  277.      3  Vcs.  J.  399.      2  Ves. 

1  Sid.  44".     Sir  Vv'^.  Jones,  223.    Cio.  106. 

Jae.  5':3.  («)  2  Burr.  119D. 

(r)lT.  R.  02.     iSaund.  2;i.n.  5.  (:)    Carth.    171.      2  Lev.   228.     2 

(.s)  lloUbrd  &  Hatch,  Doug.  183.  Vin.  Abr.  67.  70. 

(0  -^^i.  Rep.  1111.  (a)  Ante,  12.     1  Saund.  15i. 

(«)     Bac.  Abr.   Obligation,   vol.  5. 


»s  dead. 


IN  FORM  EX  CONTRACTU.  37 

ae,ainst  such  survivor,  a  demand   may  be  included,  though  it  JJ- 

became  due  from  him  smce  the  death  of-  his  partner  ;(Z))  and 
when  the  survivor  is  sued  for  his  own  separ;ite  debt,  lie  may- 
set  off  a  demand  due  to  him  as  surviving  partner. (c) 

When  tlic  contracting  party  is  dead,  his  executor  or  adivi-  stlily.    In  the. 

-        .    .  ,  ,      case  of  execu- 

mstrator,  or  in  a  case  01  a  joint  contract,  the  executor  or  ad-  lovs    en-    ad- 
ministrator of  the  survivor,  is  the  party  to  be  made  defendant ;   j«i.'"sf'"'*,^>'"^> 

^  i        J  heirs  and  <ie- 

and  covenant  lies  against  executors  in  every  case,  though  they  visets. 
be  not  named,  unless  it  be  a  covenant  to  *be  performed  by  the  "^o 

testator  in  person,  and  which  consequently  the  executor  could 
not  perform.(c/)  If  a  person  intermeddle  as  executor  with  the 
estate  of  the  deceased,  he  may  in  general  be  sued  as  executor 
dc  son  torti  although  there  be  a  lawful  executcr.Ct')  and  in 
such  case  he  is  uniformly  declared  against  as  if  he  were  a  law- 
ful executor,  though  the  party  died  intestate,  and  he  may  be 
joined  in  the  same  action  with  the  lawful  executor,  though  not 
with  the  lawful  administrator :(/)  and  if  a  stranger  takeaway 
the  goods  of  the  deceased,  if  there  be  no  lawful  executor,  he 
also  is  liable  to  be  sued  as  executor  de  son  tort^  though  he  claim 
them  as  his  onvn  ;{g)  but  if  there  be  a  lawful  executor  or  ad- 
ministrator, the  stranger  cannot  be  sued  as  executor  de  son 
tort  :(Ji)  and  a  person  cannot  ever  be  sued  as  administriitor  de 
son  tort. 

If  there  be  several  executors,  they  should  all  be  sued,  in 
case  they  have  all  administered,  or  the  defendant  may  plead  the 
non-joinder  in  abatement ;  but  if  one  have  not  administered, 
or  if  no  assets  have  come  to  his  hands,  he  may  be  omitted  :(/) 
though  as  the  plaintiff  will  succeed  if  he  recover  against  any 
one  of  the  defendants,  and  as  the  defendant  who  obtains  a  ver- 
dict, will  not  be  entitled  to  his  costs,(/:)  and  as  it  may  be  ad- 
visable to  take  judgment  of  assets  quando^  &c.  against  such 
defendant,  should   he  plead  lilais  administravity  therefore  it  is 


(/>)  2  T.  R.  4r6.  C  T.  R.  582.  vol.         (:? )  5  Co.  33.  b. 

2.  4r.  kc.  (A)  5  Co.  34.  a. 

(c)  5  T.  R.  493.  1  Esp.  Rep.  47.            (/)  Toller,    307.     As   to  plaintiffs 

(J)  3  Wils.  29.  fcxecutors,  ante,  13. 

(e)  5Co.  34.  a.  {h)  Tid.l,  901.      1  Saund.   207.  a. 

(,/■)  1  Saund.  2G5.  n.  2.    Com.  Dig.     Ante,  :■>:,. 

tit.   Administrator,  C.    3,        Toller, 
369. 


39*  OF  THE  PARTIES  TO  THE  ACTION 

11.  in  general,  advisable  to  join   all    the  *clefcndants  who  may  be 

.Deftindanta.  j  i     •    •  •       ■  -n  i  r- 

named  as  executors  or  administrators  in  the  will   or  letters   ot 

administration.  If  a  married  woman  be  execuciix,  the  husband 
must  be  joined  in  the  action ;(/)  and  an  infant  sole  executor 
cannot  be  sued  till  he  be  of  age,(m)  nor  can  an  executor  be 
sued  as  such  for  money  lent  to  himj^w)  or  upon  a  penal  sta- 
tute.(o) 

If  the  contract  were  under  seal  or  of  record,  the  heir  of 
the  party  contracting  is  liable  to  an  action  for  the  breach  of  it> 
when  expressly  named  in  the  contract,  provided  he  have  legal 
assets  by  descent  from  the  obligor.(/!)  And  if  there  be  a  dc- 
■viset\  (otherwise  tlian  for  the  payment  of  debts,  or  in  pursuance 
of  a  marriage  contract  entered  into  before  marriage,)  he  may 
be  sued  in  an  action  of  debt,  for  the  breach  of  a  contract  of  the 
testator  under  seal  or  of  record,  but  the  heir  must  be  joined  in 
the  action  ;  and  an  action  of  covenajit  cannot  in  any  case  be  sup- 
ported agahist  a  devisee,  for  a  breach  of  contract  in  the  time  of 
the  testator  ;( (7)  and  though  the  devisee  be  an  infant,  he  cannot 
pray  the  parol  to  demur  by  reason  of  his  nonage,  such  privilege 
being  confined  to  an  infant  heir(r)  But  an  cquitj  of  redemp- 
tion is  not  assets  at  law,  in  respect  of  which  an  heir  or  devisee 
is  chargeable,  but  the  creditor  must  proceed  in  a  court  of  equi- 
ty.(*)     An  heir  or  devisee  having  a  legal  estate,  are  liable  to  an 

,,     , ,,  action  *for  the  breach  of  a  covenant  running  with  the  land  com- 

''"  40  ...  .  .  . 

mitted  in  their  own  time.     ]i  there  be  several  heirs,  as  in  the 

case  of  gavel-kind,  or  of  parceners,  they  should  all  be  joined, 

or  the  defendant  may  plead  in  abatement  ;(0  and  a  devisee  must 

be  sued  w'lih  the  heir  jointly,  at  law  as  well  as  in  equity ;(«) 


(0     Cro.   J.ac.  519.  145.       Toller,  (^)  3  and -i  Win.  and  Mary,  c.  14. 

367.     Post,  43.  Bac.  Abr.   tit.  Heir  and  Ancestor,  F, 

(hi)     3h  Geo.  til.    c.  ST.       f  oiler,  1  P.  Wms.  99.     7  East,  128. 

367.  (r)  4  East,  4S5. 

(«)  1  H.  Bl.  109.  (s)  See  post,  vol.  L'.  159.  n.  w.    3 

(0)    Carth.   361.      Cro.    Eliz.  766.  Saund.  7.  n.  4. 

Com.  Dig.  tit.  Administrator,  B.   15.  (t)  2  Vin.  Abr.  67.     Com.  Dig.  tit. 

C/»)  Bac.  Abr.  tit  Heir  and  Ances-  Abatement,  F.  9. 

tor,  F.     2  Saund.   I.i6.     Plowd.  439.  («)   2  Saund.   7.  n.  4.     Bac.  Abr- 

Ul.    2  Samul.  7.  n.  4.  Heir.     Vin.  Abr.  Heir,  Z.  d.     Vol.  2 

iGl.n.  b. 


IN  FORM  EX  CONTRACTU.  40 

thouc:li  an  executor  cannot  in  any  case  be  sued  iointlv  Aviih  the     ^  J^- 

_    ^  ^  J  -  J)pfendant!f. 

hc\v.{iv) 

When  the  contracting  party  has  become  a  bankrupt,  and  has  (>^^<^h-  Jf"  th<- 

,      ,  .  case  of  l)anK- 

obtained  his  certificate,  he  is  in  general  discharged  from  all  luptoy. 
debts  due  at  the  time  of  the  act  of  bankruptcy,(.r)  and  by  a 
recent  stalute,(y)  from  debts  due,  at  the  time  of  the  commission  ; 
and  a  certificate  of  discharge  obtained  in  a  foreign  country,  is  a 
bar  to  an  action  on  a  contract  made  there. ^z)  But  if  tlie  debt  be 
not  then  due,  or  not  provable  under  the  commission,  or  be  con- 
tingent, the  bankrupt  is  not  discharged  ;(a)  and  as  we  have  al- 
ready seen,  a  lessee  is  liable  for  rent,  or  other  breach  of  cove- 
nant committed  after  his  bankruptcy,  notwithstanding  he  may 
have  obtained  his  certificate. (li)  And  when  a  debt  is  barred  by 
tlie  certificate,  if  the  bankrupt  afterwards  promise  to  pay  it,  he 
may  be  sued ;  and  it  is  suflicient  in  such  case  to  declare  upon 
the  original  consideration  ;(c)  and  when  a  party  becoiTies  bank- 
rupt after  a  prior  bankruptcy  or  composition  with  his  creditors, 
■*if  the  estate  under  the  last  commission  will  not  pay  15s.  in  the  y.   ^| 

pound,  the  bankrupt  may  be  sued  in  respect  of  his  future  effects, 
though  his  person  will  be  protected  by  his  certificate  under  the 
last  bankruptcy-;(f/)  and  in  cases  where  the  plaintiff  has  an  elec- 
tion to  declare  as  for  a  tort,  the  bankrupt  is  still  liable. (f)  V.'here 
there  are  several  contracting  parties,  and  one  of  them  has  be- 
come bankrujit,  and  has  obtained  his  certificate,  the  action  should 
be  brought  against  the  solvent  partner ;  though  if  it  be  com- 
menced against  the  two,  and  one  of  them  plead  his  certificate  in 
bar,  a  nolle  prosequi  may  be  entered ;(/")  and  if  the  bankrupt 
have  not  obtained  his  certificate  he  should  be  joined.  The  as- 
signees of  a  bankrupt  are  not  personally  liable  to  be  sued  by  any 
creditor,  even  in  respect  of  the  effects  in  their  hands,  but  he  must 
prove  his  debt,  and  accept  the  dividend  payable  to  him  ;  though 


(7t)   18   Edw.   m.   4.     Com.   Dig.  {b)  1  Saund.  2il.  n.  5.     Ante,  .-ifi. 

Abatement,  F.   10.     Yin.   Abr.   Ac-  (c)  Peakc,   C.  N.    P.   68.    Ccwp. 

tions,  C.  d.  p!.  8.  544.     2  II.  Bl.  116.     3B.  &  P.  '250..iu 

(j-)  5  Geo.  II.   c.  30.  s.  7.     'J  B.  &  notes. 

P.  1.     8  T.  II.  r,8fi.  {(l)  5   Geo.  II.  c.  30.  s.  9.     1  B.  k 

Of)  46  Geo.  III.  c.  135.  s.  2.  and  4.  P.  467. 

(r)  5  East,  124.  (c)  Cullen,  102,  3.  391,  2.     6  T.  R. 

(a)  Id.  il.id.     C'uHen,    74.     4  P:a5t,  695. 

43^^  (/)!  Wils.  89. 


41  OF  THE  PARTIES  TO  THE  ACTION 

^I-  after  a  dividend  has  been  declared,  an  action  may  be  maintained 

Defendants.  .... 

agamst  the  assignees  for  the  creditor's  share,  as  money  had  and 

received  by  them  for  his  use  \{g)  nor  can  assignees  be  sued  as 
such  for  goods  sold  to  theni:(/2)  and  in  the  case  of  a  covenant 
running  with  the  land,  if  the  assignees  of  a  lessee  do  not  take 
possession  of  the  estate,  they  will  not  be  liable  to  the  perform- 
ance of  the  covenants,(0  and  if  they  take  possession,  they  may 
nevertheless  discharge  themselves  from  future  liability  by  as- 
signing their  interest  in  the  premises  even  to  a  pauper  ;(A-)  and 

^  42  ^^^  \\^yc  seen  *that  a  bankrupt  cannot  maintain  an  action  against 

his  assignees,  for  his  allowance  under  the  statute  3  Geo.  II.  c. 
30.(/)  An  assignee  however  who  is  removed,  and  has  assigned 
his  hiterest  to  his  co-assignees,  may  be  sued  by  lhem.(7n) 

7ilily.  In  the       ^g  far  as  regards  the  person  of  an  insolvent  debtor,  he  is  by 

case  of  an  in-       .... 

solvent  debt-  his  discharge  under  the  respective  insolvent  debtors'  acts  pro- 
tected from  liability  as  to  all  debts  due  or  growing  due  on  the 
days  mentioned  in  the  respective  acts  •,{n)  but  he  may  be  sued 
in  respect  of  any  effects  acquired  by  him  since  his  dis- 
charge.(o)  Where  a  person  has  been  discharged  under  the 
Lord's  act.,  an  action  of  debt  on  the  judgment  obtained  against 
him  cannot  in  general  be  supported,  but  execution  must  be 
issued. (/O  If  however  in  either  of  these  cases  the  debtor,  af- 
ter his  discharge,  promise  to  pay  the  debt,  he  may  be  sued  and 
taken  in  execution  upon  such  new  contract,  as  in  the  case  of  a 
bankrupt,  (y) 
Sthly.  In  case  In  general  ^feme  co-vert  cannot  be  sued  alone  at  law  ;(r)  and 
atmani.-igc.  ^yi^^.i-|  -^  fane  sole  who  has  entered  into  a  contract  marries,(s) 
and  the  husband  and  wile  must  in  general  be  jointly  sued, 
though  the  husband  state  an  account,  and  expressly  promise  to 


(5)  Bong.  40r.  (0)  6  T.    R.  366.     8   East,   55,     4i 

(/«)  Cowp.  134,  5.  Geo.  III.  c.  108.  s.  63. 

(0  7  East,  335,  6.     Tefike,    C.  N.  (/>)  32  Geo.  II.  c.  28.  s.  20. 

P.  238.    Esp.  Rep.  233.     3  H.  B.  329.  {q)  Ante,  40. 

{k)  1  B.  Sc  P.  21.  00  2  B.  &  P.  105.     4  T.  R.  363, 

(0  1  E?p.  Rt'p.  306.  (s)  A  marriage  in  tact  though  not 

(7k)  Poake,  C.  N.  P.  21 3.  strictly  legal,  is  sufficient  for  this  pUr- 

\n)  41  Geo.  III.  c.  70.  s.  34.  38.     44  pose,  Andr.  227,  8.     Ante,  17.  n.  f^. 

Geo.  III.  c.  108.   s.  63.     2  East,  148. 

3  B.  k  P.  394.     8  T.  11.  49. 


IN  FORM  EX  CONTRACTU.  42 

pay  the  debt  or  perform  the  contract.^/)     But  if  he  in  respect  JI 

of  some  new  consideration,  as  for  forbearance,  &c.  expressly 
undertake  to  pay  the  *debt,  or  perform  the  contract  of  ihefcme^  *   43 

he  may  be  sued  alone  on  such  undertaking. (?/)  And  when 
vent  becomes  due,  or  there  is  a  breach  of  covenant  during  co- 
verture upon  a  lease  to  the  feme  whilst  sole,  the  action  may  be 
sued  against  both,  or  against  the  luisband  alone  ;(7y)  but  the 
feme  can  in  no  case  be  sued  upon  a  mere  personal  contract 
made  during  coverture,(x)  though,  after  the  death  of  the  hus- 
band, she  expressly  promise  to  perform  it  •,{y)  but  covenant  on 
the  warranty  in  a  fine,  or  on  a  covenant  running  with  the  land 
of  the  wife  demised  by  her  during  the  coverture,  may  be  sup- 
ported against  her  ;(z)  and  it  is  said  that  upon  a  lease  to  the 
husband  and  wife  for  her  benefit,  the  action  may  be  against 
both. (a)  And  if  the  husband  be  civiliter  mortuus,  or  even 
transported  for  a  term  of  years,  the  wife  may  be  sued  alone 
upon  a  contract  made  by  her  during  that  time. (A)  In  the  case 
of  a  feme  covert  executrix  or  administratrix,  she  must  be  join- 
ed with  the  husband  in  an  action  on  any  personal  contract  of 
the  deceased  ;(<:)  but  for  rent  due  during  the  coverture  on  a  lease 
which  the  wife  has  as  executrix,  the  husband  may  be  sued 
alone. (f/) 

When  the  husband  survives,  he  is  not  liable  to  be  sued  in 
that  character  for  any  contract  of  the  feme  made  before  the 
coverture,    unless  judgment  *had  been  obtained  against  him  ^    aa 

and  his  wife  before  her  death,  and  if  she  die  before  judgment 
the  suit  will  abate  ;ie)  but  if  the  husband  neglect  during  her 
life,  to  reduce  her  chases  in  action  into  possession,  the  creditor 


(0    7  T.    R.   3 is.     Allcyn,  72.     I  («)  1  Roll.  Abr.34.  54.  SI.  50.  Bac. 

Keb.  281.     2  T.  R.  480.     3  Mod.  186.  Abr.  Bar.  k  Feme,  L. 

Bac.  Abr.  Bar.  &  Feme,  L.  {b)  I  B.  &  P.  358.  n.  f.     Co.  Litt. 

(h)  Alleyn,  73.  J33.  a.     2  B.  k  P.  105.     4  Esp.  Rep. 

(w)  G  Mod.  239.     1  Roll.  Abr,  348.  27,  8.     Sehvyn,  X.  P.  238,  9.  310. 

pi.  45.  50.    Thomp.  Ent.  117.     Com.  (c)  Cro.  Jac.  519.  145.     Ante,  39. 

Dig.  Bar.  &  Feme,  Y.  (c/)  Com.  Di-    Bar.  Sc  Feme,  Y. 

(x)  8  T.  R.  54.';.     2  B.  &    P.    105.  Tliomp.  Ent.  117. 

Palm.  312.  (e)  7  T.  R.  350.     Cora.  Dig.  Bar.  Jsc 

(i/)  I  Sua.  94,  5.  Feme,  2.   C.     3   Mod.    186.      R.  T 

(r)  2  Saund.  180.  d   9.  Talb.  173.     3  P.  Wms.  410. 


44  or  THE  PARTIES  TO  THE  ACTION 

,      ^^-  may  sue  her  administrator  for  debts  due  before  her  marrifee ;(/) 

defendants.  .  ,    ,     •  '    •     , 

ana  for  rent  mcurred  durnig  the  coverture,  or  upon  a  judg- 
ment obtained  against  husband  and  wife,  in  case' of  her  death, 
he  may  be  sued  alone.(5-) 

In  case  the  wife  survive,  she  may  be  sued  upon  all  her  unsa- 
tisfied contracts  made  before  coverture  ;(A)  but  the  bankruptcy 
and  certificate  of  the  husband  will  discharge  her  from  all  lia- 
bility to  satisfy  debts  which  could  have  been  proved  under  his 
commission  ;  and  if  the  husband  and  wife  be  sued  jointly,  his 
bankruptcy  may  be  pleaded  in  bar.(/) 

If  the  hvisband  be  sued  alone  upon  the  Contract  of  his  wife 
before  coverture,  and  the  objection  appear  upon  the  face  of  the 
declaration,  the  defendant  may  dcmin*,  move  in  arrest  of  judg- 
ment, or  bring  a  writ  of  error  ;(A:)  and  if  the  contract  were 
misdescrllicd  as  being  that  of  the  husband,  the  plaintiff  would 
be  nonsuited.  But  if  the  wife  be  sued  alone  upon  her  contract 
before  marriage,  she  must  plead  her  coverture  in  abatement, 
or  bring  error  coram  nobis,  and  the  coverture  in  such  case  can- 
not be  pleaded  in  bar  «r  given  in  evidence  upon  the  trial  as  the 
*   45  *ground   of  nonsuit ;(/)  and  if  she    marry    pending  an    action 

against  her,  it  will  not  abate,  but  the  plaintiff  may  proceed  to 
execution  without  noticing  the  husband. (/»)  But  if  a  fe?ne  cO' 
vert  be  sued  upon  her  supposed  contract  made  during  cover- 
ture, she  may  in  general  plead  the  coverture  in  bar,  or  give  it 
in  evidence  under  the  general  issue,  even  in  the  case  of  a 
boi;d.(/i)  And  if  the  husband  and  wife  be  improperly  sued 
jointly  on  a  contract  after  marriage,  the  action  will  fail  as  to 
both.(o) 


(/)  oP.  Wms.  409.  II.  T.  Tiilb.         (0  3T.  R.  631.     2  Roll.    Rep.    53. 

173.  Sty.  -'80.     Bac.  Abr.  Bar.  &  Feme,  L. 

(^)  3>ro(l.  189. 11.  k.  G:Mod.239.         (;»)  2  Stra.  811.     4  East,  521.  Cro. 

Com.  Dig.  Bar.  St  Feme,  2.  B.  Jnc.  323.     Bac.  Abr.  Abatement,  G. 

(A)  -  T.  R.  350.  («)    12  Mod.    101.     1   Salk.    7.     r> 

(01  P.   Wms.  249.  2  Yes.    181.     Kcb.  228.    Bull.  N.  P.   172.     2  Stra. 

CuUen,  392.  1104. 

{k)  7  T.  R.  348.  {o)  Palm.  312.     Ante,  31.  43. 


IN  FORM  EX  DELICTO.  4,5 


//.  LV  .aCTIO.VS  LX  FORM  EX  DELICTO. 

The  rules  -which  direct  who  arc  to  be  the  parties  to  an  action 
in  form  ex  delicto^  whether  us  plaintiffs  or  defendants,  may,  as 
in  actions  in  form  ex-  contractu.^  be  considered  with  reference, 
ist,  to  the  interest  of  the  plaintiff  in  the  mutter  afiected,  and 
the  liability  of  the  defendant ;  2dly,  the  number  of  the  parties, 
and  who  must  or  may  join  or  be  joined  ;  Sdly,  where  there 
has  been  an  assignment  of  interest,  &c.  4thly,  in  the  case  of 
survivorship  ;  5thly,  where  the  paity  injured,  or  committin.5 
the  injury,  is  dead  ;  6thly,  in  the  case  of  bankruptcy  or  in- 
solvency; and  7thly,  in  that  of  marriage. 

The  action  for  a  tort^   must  in  general,  be  brouglit  in  the    /  Plaintiff. 
name  of  the   party  whose  leifal   right   has    *been  attccted  ;(/i)   1st.    AVitli  it- 

.  .  '     tl-roncc  10  th.ti 

and  a  cestui  que  trust  or  other  person  having  oniy  an  equitable  //j/rrc.vf  of  tiie 
interest,  cannot  in  general,  sue  in  the  courts  of  common  law,  ''  ' "  j;l  .  ^ 
against  his  trustee,  or  even  a  third  person, (y)  unless  in  cases 
whei'e  the  action  is  against  a  wrong-doer,  and  for  an  injury  to 
the  actual  possession  of  the  cestui  que  trust.(^r)  INiany  of  the 
rules  and  instances  which  have  been  stated  in  respect  to  the 
person  to  be  made  the  plaintiff  in  actions  in  form  <°.r  contractu 
here  also  govern  and  are  applicable. (.v)  Actions  in  form  ex  de- 
licto are  for  injuries  to  the  absolute  or  relative  rights  01  per- 
sonsy  or  to  fiersojial  or  real  properly. 

The  action  for  an  injury  to  the  absolute  rights  of  persons^  a.s 
for  assaults,  batteries,  wounding,  injuries  to  tlie  health,  liberty 
and  reputation,  can  only  be  brought  in  the  name  of  the  party 
immediately  injured,  and  if  he  die,  the  remedy  determines. 
With  respect  to  injuries  to  the  relative  rights  of  persons,  the 
husband  may  sue  alone  for  injuries  w^liich  have  occasioned  loss 
or  deprivation  of  the  society  of  his  wife,  or  her  assistance  in 
his  domestic  affairs,  such  as  criminal  conversation,  or  violent 
battery  occasioning  an  illness  of  the  wife  for  sonie  time,  or  ex- 


(/»)  8T.  R.  3.30.  (»•)  I  East,  244.     '2  Suund.  47  d 

(y)    1  Saiind.  oa  U.  aad  T.  '2'l'-2,    3.         («)  Ant--,  3  to  J 
7  T.  R.  47. 


Vol.  I.  [  5  ] 


46  OF  THE  PARTIES  TO  THE  ACTION 

7.  Plaintiffs,  pense  in  her  cure  ;  and  in  such  action  the  husband  may  include 
a  demand  in  trespass  or  case  for  an  injury  to  his  own  person, 
or  to  his  personal  or  real  property;  but  if  the  battery  or  other 
act  were  not  sufficiently  injurious  to  prove  the  allegation /jer 
fjuod  consortium  amisit,  or  that  the  husband  was  put  to  expense, 

^    A'y  he  cannot  sue  alone,  but  the  action  niiust  be  in  the  *name  of 

the  Imsband  and  wife  for  her  personal  suffering,  and  in  which 
case  no  demand  for  an  injury  to  the  husband,  either  by  loss  of 
the  society  of  his  wife,  or  expense  in  her  cure,  injury  to  her 
wearing  apparel    or  other  cause  of  action,  in  which  the  hus- 
band alone  is  in  point  of  law  interested,  can  in  strictness  be  in- 
cluded.(^)     In  the  case  of  master  and  servant,  the  master  may 
sue  alone  for  the  battery,  or  debauching  of  his  servant,  though 
no  relation,  when  there  is  evidence  to  prove  a  consequent  loss 
of  service  ;(w)  but  if  there  be  no  evidence  of  such  loss  an  ac- 
tion cannot  be  supported  in  the  name  of  the  master,  but  the 
servant  must   sue  alone  for  the  battery  ;  or  where  there  was  a 
promise  of  marriage,  for  the  breach  of  such  promise. (■a^)     A 
parent  may  perhaps  sue  in  that  character  for  the  taking  away 
of  his  child, (x)  but  he  cannot  support  an  action  for  debauching 
his  daugliter,  or  beating  his  child,  unless  there  be  evidence  to 
support  the  allegaiion  /ler  quod  servitiiim  amisit.{y)     In  cases 
of  the  battery  of  the   wife,  the  daughter,  or  the   servant,  if 
there  be  any  evidence  sufficient  to  support  an  action  in  the 
name  of  the  husband,  parent  or  master,  it  is  frequently  most 
advisable  to  proceed  accordingly,  because  in  such  action  if  the 
plaintiff  recover  less  than  40i'.  damages,  he  will  be  entitled  to 
full  costs.(r)     The  wife,  the  child  and  the  servant,  having  no 
legal  interest  in   the   person  or  property  of  the  husband,  the 

^ir  48  parent  or  *master,  cannot  support  an  action  for  any  injury  to 

them.(a) 


(0  3Bl.  Com.  140.     1  Salk.  119.  (x)  3Bl.Com.  141. 

00   Peake,  C.  N.   P.  55.    233.     5  \ij)  5  East,  45. 

East,  45.  4r.     3  Bl.  CoiTi.  142.     9  Co.  (:)    3  Wils.  319.     1  Salk.   206.     2 

113.     10  Co.  330.  L(l.  Raym.  831.  post,  2  vol.  ^65.  n.  n 

(-.y)  III.  iliicl.     3  Bl.  Com.  142.    9  (a)  3  Bl.  Com.  143     1  Salk.  119 
Co.  113.     10  Co.  330. 


IN  FORM  EX  DELICTO.  48 

The  absolute  or  general  owner  of  personal  property  having  /■  Plaintiffs. 
the  right  of  immediate  possession,  may  in  general  support  an 
action  for  any  injury  thereto,  though  he  have  never  had  the 
actual  possession,  it  being  a  rule  of  law  that  the  property  in 
personal  chattels  draws  to  it  xhe  possession. {b)  So,  though  at 
the  time  when  the  injury  was  committed,  the  goods  were  in 
the  actual  possession  of  a  servant,  carrier  or  other  bailee,  yet 
if  the  general  owner  had  the  right  of  immediate  possession, 
the  action  may  be  in  his  name,(c)  or  it  may  be  in  the  name  of 
the  person  having  actual  possession  but  only  a  special  property, 
as  by  a  factor,  a  carrier,  a  pawnbroker  or  an  agister  of  cattle, 
or  against  a  stranger  by  any  person  having  the  actual  possession 
at  the  time  of  the  injury  ;(rf)  but  a  mere  servant  having  only 
the  custody  of  goods,  and  not  responsible  over,  cannot  in  gene- 
ral sue.(e)  And  tliough  in  the  above  instances  the  action  may  ' 
be  brought  by  the  general  or  special  owner  of  goods  against  a 
stranger,  yet  both  actions  cannot  be  supported  at  the  same 
time,  and  a  judgment  obtained  by  one  is  a  bar  to  an  action  by 
the  other.(y)  And  v.  hen  the  general  owner  has  not  the  right 
of  immediate  possession,  as  where  he  has  demised  goods  for 
a  term,  he  cannot  maintain  trespass  or  trover  even  against  a 
stranger  •,{g)  though  if  the  injury  were  sufficient  to  affect  his 
reversionary  *interest,  he  may  support  a  special  action  on  the  *   49 

case  ;(A)  end  a  recovery  in  an  action  by  the  party  having  a  pos- 
sessory interest,  would  be  no  bar  to  an  action  for  an  injury  to 
the  reversionary  interest.(/)  A  landlord  has  in  legal  consider- 
ation the  possession  of  timber,  though  not  excepted  in  the 
lease,  so  that  though  it  be  cut  down  pending  the  term,  if  it  be 
carried  away,  he  may  maintain  trespass  or  trover,  the  interest 
of  the  lessee  in  the  trees  determining  instantly  they  are  cut 
down.(/-) 


{b)  2  Saund.  47.  a.  n.  1.      7T.  R.  (/)  ■2.  SaunJ.  4r.  e.  1  Bulst.  08.    2 

12.     1  Bulst.  68,  9.  Vin.  Abr.  49.  pi.  6. 

(c)  2  Sauiid.  4".  b.    '  T.  R.  12.  (?•)  /  T.  R.  9.     3  Lev.  209. 

\d)  2  Saund.  47.    b.   c.  d.      2  Vin  (/i)  7  T.  R.  9.     3  Lev.  209. 

Abr.  49.  (0  3  Lev.  209. 

(e)  Owen,    52.        2  Saund    47    a.  (A)7T.  R.  13.    1  Saund.  322.  n.  ?. 

b  0.  d.  Vin  Abr  Trespass,  S.  pi.  10, 


49  OF  THE  PARTIES  TO  THE  ACTION 

J.  riainttji  I'hc  person  in  possession  of  real  /^rojiertij  corporeal,  whether 

lawlully  or  not,  may  sue  for  an  injury  committed  by  a  stranger, 
or  by  any  person  who  cannot  establish  a  better  title  ;(/)  and  in 
trespass  to  land,  the  person  actually  in  possession,  though  a 
cestui  que  trust,  should  be  the  plaintiff  and  not  the  trustee  ; 
Uiough  in  ejectment  it  is  otherwise,  and  the  demise  must  be 
in  the  name  of  the  party  legally  entitled  to  the  possession, 
aithough  the  beneficial  interest  may  be  in  another.(w)  In  the 
case  of  real  property,  there  is  not  that  constructive  possession 
as  in  that  of  personalty,  and  the  party  entitled  to  possession 
cannot  maintain  trespass,  unless  he  has  had  actual  possession, 
though  he  have  the  freehold  in  law.(«)  A  person  having  the 
immediate  reversion  or  remainder  in  fee  or  in  tail  or  for  a  less 
estate,  may  support  an  action  on  the  case  for  waste,  &c.  inju- 
*   50  rious  to  his  estate  ;(o)  but  he  cannot  sue  in  '•trespass  when  the 

possession  is  lawfully  in  his  tenant  or  other  person. (/i)  The 
tenant  may  support  trespass  against  a  stranger  for  an  injury  to 
his  possession,  and  the  immediate  reversioner  may,  at  the 
same  time,  support  an  action  on  the  case,  if  the  injury  were 
sufficient  to  prejudice  his  interest ;  and  a  recovery  by  one  will 
be  no  bar  to  an  action  by  the  other.((/)  When  trees  are 
excejoted  in  a  lease,  the  lessee  has  no  interest  therein,  and  can- 
not sue  even  a  stranger  for  cutting  them  down,  though  he 
might  for  the  trespass  to  the  land  ;  and  in  such  case  the  lessor 
may  support  trespass  against  the  lessee  or  a  stranger,  if  he 
either  fell  or  damage  them ;  but  if  there  be  no  exception  of 
the  trees  in  the  lease,  the  lessee  has  a  particular  interest  there- 
in, and  may  support  trespass  against  the  lessor  or  a  stranger 
for  an  injury  to  them  during  the  vSvm  :  but  the  interest  in  the 
body  of  the  trees  remains  in  the  lessor  as  part  of  his  inherit- 
ance, and  he  may  support  an  action  on  the  case  agamst  a  lessee 
or  a  stranger  for  tmy  injuiy  thereto,  or  even  trover,  if  they  be 


(/)    1  East,  244.     Vvllles,  2-21.     ;j  4  Burr.    2141.       Com.   Dig.   Action, 

Biiiv.  1563.      2  Stra.  123.     Cro.  Car.  Case,  Nuisance. 
586.     Peake,  C/.  (/*)  Id.  ibid.     7  T.  R.  9. 

(«)  7  T.  R.  47.  50.  \q)  4  Burr.  2141.     3  Lev.  209.  359, 

(»)    Com.   Dig.   Trespass-,  B.  3. —  360.     Com.  Dig;.  Action,  Case,  Nui- 

See  the  next  cliapter.  sauce,  B- 

(*;)    2  Sauud.  25i?.  b.      3  Lev.  209. 


IN  FORM  EX  DELICTO.  50 

cut  down  and  carried  away.(r)  Most  of  these  rules  prevail  i-  Plaintiffs. 
also  in  the  case  of  an  injury  to  real  property  incorporeal^  and  if 
there  be  any  injury  to  such  right,  an  action  may  be  supported, 
however  small  the  damage  :  and  therefore  a  commoner  may 
maintain  an  action  on  the  case  for  an  injury  done  to  the.  com- 
mon, though  his  proportion  of  the  damage  be  found  to  amount 
only  to  a  farthing. («) 

*Whcn  two  or  more  persons  are  jointly  entitled,  or  have  a  *   51 

joint  legal  interest  in  the  property  aficcted,  they  must  in  gene-  ^''b-  ^^J'*} 
ral  join  in  the  action,  or  the  defendant  may  plead  in  abatement ;  the  number  of^ 
and  though  the  interest  be  several,  yet  if  the  wrong  complain- 
ed of  be  an  entire  joint  damage,  the  parlies  may  join  in  the 
action  J  but  as  the  courts  will  not  in  one  suit  take  cogni- 
sance of  distinct  and  separate  claims  of  different  persons, 
therefore  where  the  cause  of  action  as  well  as  the  interest  is 
several,  each  party  injured  must  sue  separately. (V) 

Therefore  for  injuries  to  the  person.,  several  parlies  cannot  in 
general  sue  jointly,  as  for  slander,  battery,  or  false  imprison- 
ment of  both,  and  each  must  bring  a  separate  action  ;(ii)  but 
two  partners  in  trade  may  join  in  an  action  for  words  spoken  of  ' 
them  in  the  way  of  their  trade  ;(w)  and  joint  tenants  or  copar- 
ceners may  join  in  an  action  for  slander  of  their  title  to  the  es- 
tate •,{x)  and  husband  and  wife  may  sue  jointly  for  a  malicious 
prosecution  and  imprisonment  of  both,  or  the  husband  may  sue 
alone  ;(v)  and  it  appears  to  be  a  general  rvile  that  two  persons 
may  join  or  sever,  though  their  interest  be  several,  if  the  injury- 
complained  of  were  a  joint  damage  to  both.(z) 

In  actions  for  injuries  to  personal  property.,  joint  tenants  and 
tenants  in  common  must  join,  or  *the  defendant  may  plead  in  ^   50 

abatement  ;(ti)  but  parties  having  several  and  distinct  interests, 
cannot  in  general  join  ;  as  if  the  goods  of  A  and  -S,  the  sepa- 
rate property  of  each,  be  unlawfully  distrained,  they  cannot  join 


(/•)  I  Saund.  3'22.  n.  :>.    7  T.  R.  13.         (re)  3  R.  k  P.  150.     '2  East,  42G^ 
Com.  Dig.  lit.  Riens.     Ante,  49.  (.-•)  '2  Sauiul.  IIT.  a. 

(«)  2  East,  154.  ^i/)  Cro.  Car.  553. 

(0     Ante,  8.      1  Saund.  291.  g.  2  (r)  2  Saiind.  Ufi.  a.     3  Lev.  502. 

Sauiid.  116  n.  2.     Bac.  Abr.  Action,         (<?)  I5ac.  Ahr.  Joint  tenants,  K.     7 

C.    2WiIs.  423.  T.   It.  279.     5   East,  407".    Co.   Lit 

(?0  2Saund.  117.  a.    2  Vin.  Abr.  198,  a. 
5i.  pi.  29.  3.1.     Bac.  Abr.  Actrous,  C. 


5^ 


52  OF  THE  PARTIES  TO  THE  ACTION 

I.  Plaintiffs,  in  replevin  •,{b)  and  an  audita  querela  in  the  joint  names  of  the 
conusors  of  a  statute  staple,  for  levying  several  executions 
on  their  lands  respectively,  cannot  be  supported  ;(c)  nor  can 
persons  robbed  on  the  highway,  join  in  an  action  against  the 
hundred,  unless  they  "vvere  jointly  interested  in  the  proper- 
ty :(rf)  but  though  the  interests  be  several,  yet  if  the  injury  oc- 
casion an  entire  joint  damage  to  several,  they  may  in  some 
cases  join  ;(e)  as  where  two  persons  were  severally  seised  of 
two  ancient  mills,  at  one  or  other  of  which  the  defendant  ought 
to  have  ground  his  corn,  but  neglected  to  grind  at  either,  it  was 
decided  that  both  might  join  ;(/)  and  on  the  same  principle  it 
was  holden  that  the  dippers  at  Tunbridge  Wells  might  join  in 
an  action  against  a  person  who  exercised  the  business  of  a 
dipper,  not  being  duly  appointed  ;{g)  and  where  goods  are 
bailed  to  two,  and  only  one  has  the  possession  in  fact,  and  a 
stranger  carries  them  away,  both  may  have  detinue  or  tres- 
pass, or  the  one  who  had  actual  possession  may  sue  alone.(/i) 
In  actions  for  injuries  to  real  property,  joint-tenanis,(z)  and 
parceners,(A")  must  join  in  real  *as  well  as  personal  actions,  or 
the  non-joinder  may  be  pleaded  in  abatement ;  and  if  one  of 
several  joint-tenants  die  pending  a  real  action  it  will  abate,  as 
the  survivor  is  entitled  to  a  different  estate  ;  but  it  is  other- 
wise in  personal  and  mixed  actions. (/)  Tenants  in  common 
must  in  general  sever  in  real  actions,  unless  in  a  quare  imfiedit ; 
and  in  ejectment  a  joint  demise  would  be  improper  ;  but  in 
personal  acliuns.  as  for  a  trespass  or  nuisance  to  their  land,  they 
may  join,  because  in  these  actions  though  their  estates  are  se- 
veral, yet  the  damages  survive  to  all,  and  it  would  be  unreason- 
able when  the  damage  is  thus  entire,  to  bring  several  actions 
for  a  single  trespass :(?«)  a  tenant  in  common  may  however  in 
general  sue  separately,  as  in  ejectment  for  his  undivided  share, 
or  in  trespass  for  the  77icme  profits,  or  in  debt  for  double  value 


U>)  Co.  Lit.  145.  b.  Abatement,  E.    12. 

(t)  Cro.  Eliz.  473.     Xoj-,  1.  (j)  2  Vin.  Abr.  59.   Bac.  Abr.  Joint- 

{(l)  Dyer,   370.     2  Sauud.   UG.  a.  tenants,  K. 

377.  a.  (^")  Vin.  Abr.  tit.  Parceners. 

(f)  2  Saund.  115.  \l)  R.  T.   Hardw.   398.     Co.   Lit, 

(/)  iSauml.  115,  Ifi.  18S.  197. 

{§■)  2  Wils.  423.     2  Saund.  llC  n.  ("A  Bac.  Abr.  tit.  Joint-tenants,  K. 

2.  2  Bl.  Rep.  1077.     5  T.  R.  247.    Yelv, 

(h)   2  Vin.  Abr.   59.     Com.  Dig.  IGl.    Cro.  Jac.  231. 


IN  FORM  EX  DELICTO.  53 

against  a  person  who  has  held  over  after  the  expiration  of  his    /•  Phimiffs. 
tenancy.(n) 

In  actions  in  form  ex  delicto^  if  a  party  who  ought  to  join  be 
omitted,  the  objection  can  only  be  taken  by  plea  in  abatement, 
or  by  way  of  apportionment  of  the  damages  on  the  trial ;  and 
the  defendant  cannot,  as  in  actions  in  form  ex  contractu^  give  in 
evidence  the  non-joinder,  as  the  ground  of  nonsuit  on  the  plea 
of  the  general  issue,  or  demur,  or  move  in  arrest  of  judgment, 
or  support  a  writ  of  error,  though  it  appear  upon  the  face  of  the 
declaration,  or  other  pleading  of  the  plaintiffj  that  there  is  ano- 
ther party  who  ought  *to  have  joined  :(o)  and  if  one  of  seve-  ^   54 
ral  part  owners  of  a  chattel  sue  alone  for  a  tort,  and  the  de- 
fendant do  not  plead  in  abatement,  the  other  part  owners  may 
afterwards  sue  alone  for  the  injury  to  their  undivided  shares, 
and  the  defendant  cannot  plead  in  abatement  of  such  aciion.(/?) 
If  however  too  many  persons  be  made  coplaintiffs,  the  ob- 
jection, if  it  appear  on  the  record,  may  be  taken  advantage  of 
either  by  demui'rer,  in  arrest  of  judgment,  or  by  writ  of  er- 
ror ;(7)  or  if  the  objection  do  not  appear  on  the  face  of  the 
pleadings,  it  would  be  a  ground  of  nonsuit  on  the  trial,  though 
if  two  tenants  in  common  join  in  detinue  of  charters,  it  is  said 
if  one  be  nonsuit,  the  other  shall  recover.(r) 

We  have  already  seen  that  chases  in  action   ex  contractu^  are  Sdly.  When 

^    •  1  •         1  I        ^  1  i  II     ^1  •  the  interest  iu 

not  m  general  assignable  at  law,  so  as  to  enable  the  assignee  jj^g  property 
to  sue  in  his  own  name  ;(s)  the  same  rule  also  prevails  in  the  ^^^  ''f'^"   "^' 

.  signed, 

case  of  injuries  ex  delicto   either   to  the   person,  personal,  or 

real  property  ;  and  therefore  an  heir  cannot  maintain  an  action 
for  waste  committed  in  the  time  of  his  ancestor,  nor  the 
grantee  of  a  reversion  for  waste  committed  before  the  grant ;(?) 
though  we  have  already  seen  that  if  a  person  have  the  imme- 
diate reversion  or  remainder  in  fee,  in  tail,  or  for  life,  or  years, 
vested  in  him  at  the  time  of  the  waste  committed,  he  may 


(n)  5  T.  R.  248.    2  Bl.  Rep.  1077.  (g)  3  B.  &  P.  150.     2  Saund  116.  a.. 

(o)  1  Saund.  291.  g.     6  T.  R.  766.  Cro.  Eliz.  473. 

7T.  R.  279.     2  Saund.  117.  47.  g.     1  (r)  Co.  Lit.  197.  b. 

B.  &  P.  75.     2  B.  &  P.  123.     5  East,  (.s)  Ante,  10. 

407.  420.  It)  2  Saund.  252.  a.  n.  7.     2  Inst- 

(/>)  7  T.  R.   279.    3  Keb.  244.    5  305.  ' 
East,  407. 


55^  OF  THE  PARTIES  TO  THE   ACTION 

/  Plaintiffs,    "maintain  an  action  *on  the  case  for  such  injury  to  his  cstate.(u> 

And  a  devisee  may  support  an  action  for  the  continuance  of  a 

nuisance  erected  in  the  life-time  of  the  testator. (7y) 

4thly.   "When       When  one  or  more  of  several  parties  interested  in  the  pro- 
one  of  several  ....  .  . 

parties  inter-  pei'ty  at  the  time  the  mjury  was  committed  is  dead,  the  action 

estud  IS  dead,  should  be  in  the  name  of  the  survivor,  and  the  e.^ecutor  or  ad- 
ministrator of  the  deceased  cannot  be  joined,  nor  can  he  sue 
separately  ;  and  therefore  to  an  action  of  trover  brought  by  the 
survivor  of  three  partners  in  trade,  it  cannot  be  objected  that 
the  two  deceased  partners  and  the  plaintiff  were  joint  mer- 
chants, and  consequently  that  in  respect  of  the  lex  inercatoria 
the  right  of  survivorship  did  not  exist,  for  the  legal  right  of 
action  survives,  though  the  beneficial  interest  may  not.(x)  At 
common  law  when  an  action  had  been  commenced  in  the  name 
of  two  or  more  persons,  and  one  of  them  died  pending  the 
suit,  it  abated  ;  but  now  by  the  8  and  9  ]l'm.  III.  c.  2.  s.  7 Xy) 
it  is  enacted,  that  "  if  there  be  two  or  more  plaintiffs  or  dc- 
"  fendants,  and  one  or  more  of  them  should  die,  if  the  cause 
"  of  such  action  shall  survive  to  the  svu'viving  plaintiff  or  plain- 
"  tiffs,  or  against  the  surviving  defendant  or  defendants,  the 
"  writ  or  action  shall  not  be  thereby  abated,  but  such  death  be- 
"  ing  suggested  upon  the  record,  the  action  shall  proceed 
"  at  the  suit  of  the  surviving  plaintiff  or  plaintiffs  against  the 
"  surviving  defendant  or  defendants  ;"  and  consequently  since 

5(f    eg  this  statute  if  *one  of  several  plaintiffs  die  pending  a  suit,  and 

the  cause  of  action  would  survive  to  the  survivor,  he  may  pro- 
ceed on  the  action. 

5tli!v.  In  case       "We  have  seen  that  the  right  of  action  for  the  breach  of  a  con- 

ot    the  death  ,    .  . 

of  the   party  tract,  upon  the  death  of  either  party,  in  general  survives  to,  and 
'^"'''^'  against  the  executor  or  administrator  of  each  ;(z)  but  in  the 

case  of  torts,  when  the  action  must  be  in  form  ex  delicto,  for 
the  recovery  of  damages,  and  the  plea  thereto  not  guilty,  the 
rule  at  common  law  was  otherwise,  it  being  a  maxim  that  actio 
■[lersojialis  vioritur   cxivi  perso7m,{a)   and  we    shall  find  that  the 


(?/)  Ante,  49.     2  Saund.  252.  b.  (:)  Ante,  12. 

(w)  Cro.  Jac.  2,>l.  (rt)   See   the    observations  on    this 

(.r)  1  Show.  18S.     Carth.  ITO.    An-  rule  in    general,  .3  Bl.  Cora.  302.     1 

te,  11,13.  Saund.  210,   17.  n.   1.  Cowp.  371   to 

()/)  See  the  ca^^es  2   Saund.   "2.  i.  377.     3  Woodd.   7.5.     Vin.  Abr    tit, 

R.  T.  Hardw.  5'J5.     Bac.  Abr.   Joint-  E\ecutors,12.3.     Com.  Di;;.  Admiujs- 

tenants,  K.  trator,  B.  13. 


IN  rORM  EX  DELICTO.  56 

statute  4  EcIts}.  III.  c.  7.  has  altered  this  rule  oii'y  in  its  reh-  ^  Plainiijl. 
tion  to  /iersonc/ property,  and  in  favour  of  the  personal  repre- 
sentatives of  the  party  injured  ;  but  if  the  action  can  be  framed 
in  form  ex  contractu.,  this  rule  does  not  apply.  We  ^vill  consi- 
der the  rule  as  it  now  affects  actions  for  injuries  to  the  person, 
and  to  j)ersonal  and  real  property. 

In  the  case  of  injuries  to  the  person.^  -whether  by  assault,  b.it- 
tery,  false  imprisonment,  slander,  or  otherwise,  if  either  the 
party  who  received  or  committed  the  injury  die,  no  action  can 
be  supported  either  by  or  against  the  executors  or  other  per- 
sonal representatives,(6)  for  the  statute  4  Ed%v.  III.  c.  7 .  hus 
made  no  alteration  in  the  common  law  in  this  respect.(c) 

At  common  law  in  case  of    injuries    to   personal  *]iroh:'r-  *    57 

/y,  if  either  party  died,  in  general  no  action  could  be  sup- 
ported, either  by  or  against  the  personal  representatives  of 
the  parties,  where  the  action  must  have  been  \nforin  ex  delict  f 
and  the  plea  not  guilty  ;(<:/)  but  if  any  contract  can  be  implied, 
as  if  the  wrong  doer  converted  the  property  into  money,  or  if 
the  goods  remain  in  specie  in  the  hands  of  the  executor  of  the 
•\vrong  doer,  at  common  law  assumpsit  for  money  had  and  re- 
ceived may  be  supported  by  or  against  the  executors  in  the 
former  case,  and  trover  against  the  executors  in  the  latter.(e) 
And  now  by  the  statute  4  J£dw.  III.  c.  7.  entitled  "  Executors 
"  shall  have  an  action  of  trespass  for  a  wrong  done  to  their  tes- 
"  tator,"  and  reciting  "  that  in  times  past  executors  have  not 
"  had  actions  for  a  trespass  done  to  their  testators,  as  of  the 
"  goods  and  chattels  of  the  same  testators  carried  away  in  their 
"  life,  and  so  such  trespassers  have  hitherto  remained  un- 
"  punished,"  it  is  enacted,  "  that  the  executors  in  such  cases 
"  shall  have  an  action  against  the  trespassers,  and  recover  their 
"  damages  in  like  manner  as  they,  whose  executors  they  be, 
"  should  have  had  if  they  were  in  life  ;"  and  this  remedy  is 
further  extended  to  executors  of  executors, (/)  and  toadmir.is- 
trators  {g)     It  has  been  well  observed  that  the  taking  of  goods 


(6)  3  Rl.  Com.  502.  {p)   r>,v.p.  .rk     Latch.  lOS. 

(c)    Saund.   2ir.   n.    1.  Sir   AV.         (  /)  25  E<Iw.  111.  c.  5. 
Jones,  1/4.  l^)  3lEJv.  III.  c.  11. 

(rf)  Cowp.  371  to  3T7. 

Vol.  I.  [  6  ] 


57 


OF  THE  PARTIES  TO  THE  ACTION 


I  Plaintiffs,  and  chattels  was  put  in  the  statute  merely  as  an  instance,  and 
not  as  restrictive  to  such  injuries  only,  and  that  the  term  tres- 
pass must,  with  reference  to  the  language  of  the  times  when 
the  statute  was  passed,    signify  a    wrong    generally  ;(A)   and 

*  So  accordingly  the  statute  *has  been  construed  to  extend  to  every 

description  of  injury  to  fursonal  property  by  which  it  has  been 
rendered  less  beneficial  to  the  executor,  whatever  the  form  of 
action  may  be  ;  so  that  an  executor  may  support  trespass  or 
trover,(/)  case  for  a  false  return  to  final  process,(^)  and  case  or 
debt  for  an  escape.  Sec.  on  final  process ;(/)  and  though  it  has 
been  doubted  whether  an  executor  can  sue  for  an  escape  on 
mesne  process  in  the  life-time  of  his  testator,(m)  on  principle  it 
appears  that  he  may  ;(«)  and  he  may  support  debt  for  not  setting 
out  tiihes,(o)  or  debt  against  an  executor,  suggesting  a  devas- 
tavit in  the  life -time  of  the  plaintiff 's  testator,(/i)  or  case  against 
the  sheriff  for  removing  goods  taken  in  execution,  without 
paying  the  testator  a  year's  rent  ;(y)  or  an  action  of  ejectment 
or  quare  imjiedit^  for  the  disturbance  of  the  testator.(r) 

But  with  respect  to  injuries  to  real  property,  if  either  party 
die,  no  action  in  form  ex  delicto  can  be  supported  either  by  or 
against  their  personal  representatives ;  and  though  the  statute 
4  Ed'iiK  III.  c.  7.  might  bear  a  more  liberal  construction,  the 
decisions  have  confined  its  operation  to  injuries  to  personal 

*  59  property,(6)  *and  therefore  an  executor  cannot  support  an  ac- 

tion of  trespass  qtiare  clausum  fregit.^  or  merely  for  cutting 
down  trees,  or  other  waste  in  the  life-time  of  his  testator  ;(^) 
and  though  in  Emerson  v.  Jimerson^iu)  it  was  holden  that  a  de^ 


{h)  Owen,  99.  7  East,  134.  6.— 
11  Vin.  1'25.     Latch.  167. 

(/)  1  Latch.  168.  5  Co.  27.  a.  .Sir 
W.  Jones,  174. 

{k)  4  Mod.  403.     12  Mod.  71. 

(/)  Ld.  Rayra  973. 

()«)  1  A\-ntr.  31.  1  Roll.  Abr.  912. 
Latch.  168.  Sir  W.  Jones,  173.  4 
Mod.  404.  Cro.  Car.  297.  Vin.  Abr. 
Executors,  P.  pi.  2.  ace.  Ld.  Raym. 
973.     12  ISIod.  72.      1  Salk.  12.  contv. 

(?z)  Owen,  99.     7  East,  134.  6. 

(o)  1  Ventr.  30.  1  Salk,  314.  1 
Sid.  88.  407. 


(/)■)  1  Salk.  314. 

{q)  1  Su-a.  212. 

(r)  Vin.  Abr.  E.\eeutors,  P.  pi. 
7.  Latch.  168,  9.  Sir  W.  Jones 
175.     Poph.  190.     1  Ventr.  30. 

(i)  1  Saund.  207.  n.  I.  Sir  W. 
Jones,  174.  Latch.  169.  Vin.  Abr. 
Executors,  P.  22.  kc. 

(0  SirW.  Jones,  174.  1  B.  &  P. 
330.  n.  a. 

{ii)  1  Ventr.  187.  2  Keb.  874.  Sir 
W.  Jones,  177.  174.     I  B.  &  P.  329. 


IN  FORM  EX  DELICTO.  59 

claration  by  an  executor  for  mowing,  cutting  down,  taking  and    /■  Plaintiffs. 
carrying  away  corn,  might  be  supported,  the  allegation  of  the  * 

cutting  down  being  considered  merely  as  a  description  of  the 
manner  of  taking  away  the  corn,  for  which  an  action  is  sus- 
tainable by  virtue  of  the  statute,  yet  it  was  decided  that  if  the 
declaration  had  been  quare  clausum  /regit ^  et  blada  asjiortavit 
it  would  have  been  insufficient ;  and  that  if  the  defendant  had 
merely  cut  the  corn  and  let  it  lie,  no  action  could  have  been  sup- 
ported by  the  executor,  or  if  the  grass  of  the  testator  had  been 
cut  and  carried  away  at  the  same  time.  We  have  seen  how- 
ever that  an  action  may  be  supported  by  a  devisee  for  the  con- 
tinuance of  a  nuisance  erected  in  the  life-time  of  the  tcs- 
lator.(w) 

The  statutes  relating  to  bankrupts,  pass  to  the  assignees  all  fitWy.  In  cas6 
rights  of  action,  real  as  well  as  personal,  and  every  species  of  cv  isc. 
right  of  which  by  any  possibility  profit  could  be  made  ;  for 
though  rights  of  action  are  not  assignaljle  at  common  law,  and 
the  statutes  use  the  expression,  "  such  right,  &c.  as  the  bank- 
"  rupt  may  lawfully  depart  withal,"  yet  the  policy  of  the  bank- 
rupt law  requires  that  such  rights  should  be  transferred  as 
much  as  any  other  *species  of  property  ;(:r)  and  therefore  the  ^   /;q 

assignees  of  a  bankrupt  may  support  trover  for  a  conversion  be- 
fore or  after  the  bankruptcy, (?/)  or  debt  to  recover  from  the 
winner  money  lost  at  play,  by  the  bankrupt  before  his  bankrupt* 
cy.(z)  But  for  torts  to  the  person  of  the  bankrupt  which  are 
not  the  subject  of  property,  as  slander,  Sec.  the  assignees  can- 
not sue,(c)  and  in  this  case  the  bankrupt  may  support  the  ac- 
tion ;(6)  and  he  may  also  sue  in  trover  against  a  stranger  for 
goods  acquired  by  him  after  his  bankruptcy,(c)  and  he  may 
support  trover  or  trespass  against  his  assignees  if  he  were  not 
liable  to  the  commission .(c/) 

The  wife  having  no  legal  interest  in  the  person  or  property  rthly.  In  case 
of  her  husband,  cannot  in  general,  join  with  him  in  any  action  "*  '"^'■"«S« 


(w)  Ante,  55.  (a^    Sir  W.  Jones,    215,      Cullen, 

(.r)  CuUen,  ire.    2  H.  Bl.  444.  17' 

iy)  Cullen,  4lS,  19,  20.      5  East,        (J?)  Id.  ibid. 
^^T"-  (c)  7  T.  R.  391.    Cullen,  414. 

(-)  2  H.  Bl.  .".-^  {d)  2  Wih.  .382.     1  Atk.  102.   Cut- 

ten,  412. 


60  OF  THE  PARTIES  TO  THE   ACTIONT 

-'  Phunttjs.    for  an  injury  th':;reto  ;(<*)  except  in  an  action  for  a  joint  malicious 
•  prosecution  of  both,  in  which  they  may  join  in  respect  of  the 

injury  to  both,  or  the  husband  may  sue  alone. (/) 

For  injuries  to  the  person,  personal,  or  real  property  of  the 
wife  committed  before  the  marriage,  when  the  cause  of  action 
would  survive  to  the  wife,  she  must  join  in  the  action,  and  if 
she  die  before  judgment  therein,  it  will  abate. (,§•)     But  in  de- 
*   61  tinue  to  recover  personal  chattels  of  the  wife,  *in  the  posses- 

sion of  the  defendant  before  the  marriage,  it  is  said  that  the 
husband  must  sue  alone,  because  the  law  ti'ansfers  the  property 
to  him,  cind  the  wife  has  no  interest  ;(A)  though  in  detinue  for 
charters  of  the  wife's  inheritance  they  may  join,  on  account  of 
the  continuing  interest  of  the  wife  in  the  estate  to  which  they 
rclute.(/) 

When  an  injury  is  committed  to  the  person  of  the  Avife 
during  coverture,  by  battery,  slander,  Sec.  the  husband  and 
wife  must  join,  if  tlie  action  be  brought  for  the  personal  suffei'- 
ing  or  injury  to  the  wife,  and  the  declaration  ought  to  conclude 
to  their  damage,  and  not  to  that  of  the  husbimd  alone  ;  for  the 
damages  will  survive  to  the  wife  if  the  husband  die  before  they 
are  recovered  •,{fc)  and  care  must  be  taken  not  to  include  in  the 
declaration  any  statement  of  a  cause  of  action,  for  which  the 
husband  alone  ought  to  sue.(/)  If  the  battery,  &c.  of  the  wife 
deprive  the  husband  for  any  time  of  her  company  or  assist- 
ance, or  if  she  be  maliciously  indicted,  and  the  husband  there- 
by put  to  expense,  he  may  sue  separately  for  such  consequen- 
tial injuries,(w)  and  he  may  in  the  same  action  proceed  for  a 
battery  or  other  injury  to  himself  («)     And   for  words  spoken 


{e)    3  Rl.  Com.  143.       Ld.   Raym.  (k)    1  Sid.  387.      Ld.  Raym.  120S. 

ItitlS.      2  Wils.  4'.i4.      1  Lev.  140.      1  Com.    Dig.  Bai-.  &  Feme,  V.     Plea- 

Salk.  119.  n.  b.     Sir  W.  Jones,  440.  dor,  2  A.  1.     3  Bl.  Com.  140.    1  Salk. 

(/)     Cro.  Jac.    553.      Com.  Dig.  Uy.     Yelv.  S9.     Freem.  224. 

Bar.  Si  Feme,  X.                                '  (/)  I  Salk.  119.  Com.  Dig.  Pleader, 

(g)  3T.  K.  627.  631.      Com.  Dig.  2  A.  1. 

Bar.  8t   Feme,    V.       Roll.  Abr.  347.  (m)  3  BI.  Com.  140.    Cm.  Jac.  538. 

Pt.  pi.  .3.  1  Sti  ft.  Gl.      2  Stra.  977.      Cora.  Dig 

(/()    Bae.  Abi'.  tit.  Detinue,  A. —  Bar.  k  Feme,  W. 

Bull.  X.  P.    50.      1  Salk.  114,      Sed  (w)    Cro.  Jac.  .TOl.      1  Salk.  119  — 

vide  R.  T.  Hardw.  120.  Sclwyn,  N.  P.  242.  n,  10. 

(0  1  Roll.  Abr.  347.  R.  pi  1     Bac. 
Abr.  Detinue, .  B. 


IN  FORM  EX  DELICTO.  *62 

of  the  wife  not  actionable  of  themselves,  *but  which  occasion    ^  Picumiffx, 
some  special  damage  to  the  husband,  he  must  sue  alone. (o) 

With  respect  to  personal  property  when  the  cause  of  action 
had  only  its  inception  before  the  murriuFc,  but  Its  completion 
afterwards,  as  in  the  case  of  trover  before  marriage,  and  con- 
version during  it,  or  of  rent  due  before  marriage,  and  a  rescue 
afterwards,  the  husband  and  wife  may  join  or  sever  in  trover 
or  trespass, (/;)  though  not  in  detinue. (^)  But  when  the  cause 
of  action  has  its  inception  as  well  as  completion  after  the  mar- 
riage, the  husband  alone  must  sue,  the  legal  interest  in  per- 
sonalty being  vested  by  the  marriage  in  him  ;(r)  and  therefore 
a  declaration  in  trover  at  the  suit  of  husband  and  wife,  should 
state  that  the  wife  was  possessed  before  the  marriage,  and  if 
it  be  stated  that  the  husband  and  wife  were  possessed,  the  de- 
fendant may  denuu",  for  the  possession  of  the  wife  is  in  law  the 
possession  of  the  husband,  and  so  is  the  property  ;(s)  and 
the  same  rule  prevails  in  replevin,  though  if  the  husband  and 
wife  join  therein,  and  the  defendant  avow,  it  will  after  verdict 
be  intended  that  the  taking  was  before  the  coverture,  and  that 
the  plaintiffs  then  had  a  joint  property  :C0  and  though  the  wife 
may  join  in  trespass  for  cutting  down  com  upon  her  land,  yet  she 
cannot  *for  carrying  it  away. (m)     However^  a. /erne  covert  exe-  *   63 

cutrix  may  and  ought  to  join  with  her  husband,  the  declaration, 
stating  that  she  svies  in  autre  droit.inv^  And  there  are  some 
cases  in  which  though  the  produce  of  the  wife's  labour,  &c. 
be  the  property  of  the  husband,  yet  in  respect  of  her  being  the 
meritorious  cause  of  action  she  may  be  joined,  as  in  the  case 
of  the  dippers  at  Tunbridge  Wells. (r) 


(o)    1  Lev.   140.     3  \roJ.    1-23.      1  (.3)     2  Siiund.  47.  g.      1   Salk.  114. 

Salk.  119.  Com.  Dig.  Pleader,  2A.  1. 

(/^)  '2SaviiKl.  47.  g.      Salk.  114.    2  (f)  R.  T.  Hartlw.  119.     Stra.  1015. 

Lev.  lOr.  Moor,  422.584.     Cfo.  Eliz.  Com.  Dijc.  Pleader,  3  K.  10.   Selwrn, 

4:>9.     Owen,  82.     Sclwyn,  N.  P.  2.50.  N.  P.  250.     2  New  Rep.  405. 

MS.      Com.  Dig.   Bar.    is  Ferae,  X.  {n)    2  W lis.  424.     Cro.  Eliz.  133. 

Bac.  Abr.  Bar.  k  Feme,  K.  Sa!V.  11 9. 

(7)  Ante,    fjO,  1.      Bac.  Abr.    tit.  {-.v)    Salk.  114.      Wenlw.  Ex.  207. 

Detinue.    Bull.  X.  P.  5.3.  Bi-o.    Bar.   k  P'eme,  pi.  S5.    Sehvyn, 

(r)  U.T.  Harchv.  119.  2  Saund.  47.  N.  P.  250,  1.  MS. 

49.     Cro.  Eliz.  133.      Salk.  114.   119.  (.r)   2  Wils.  4l4.  424.      Com.  Dig. 

2  Bl.  Rep.  1230.     Selwyn,  N.  P.  244.  Bar.  St  Feme,  X- 
250.  MS.     7  Mod.  105 


63  OF  THE  PARTIES  TO  THE  ACTIQN 

/.  PUiintiJs.  Ill  i-eal  actions  for  the  rccovety  of  the  land  of  the  wife,  and  in 
a  writ  of  waste  thereto,  the  husband  and  wife  must  join  \(tj) 
a  rule  which,  wc  have  seen,  obtains  also  in  detinue  of  char- 
ters.(r)  But  when  the  action  is  merely  for  the  recovery  of 
damages  to  the  land,  or  other  real  property  of  the  wife  during 
the  coverture,  or  for  a  tort  which  prejudices  a  remedy  by  hus- 
band and  wife,  as  in  the  case  of  quart  imfiedit.,  a  rescue,  &c.  the 
husband  may  sue  alone,(a)  or  the  wife  may  be  joined,(3)  her 
interest  in  the  land  being;  stated  in  the  declaration.  But  a  de- 
mand for  removal  of  personal  property,  as  corn  or  grass  when 
severed  from  the  land,  ought  not  in  the  latter  case  to  be  in- 
cluded, because,  as  we  have  seen,  the  entire  interest  in  per- 
sonalty is  vested  in  the  husband.(c) 

•*   64  *^^  '■^^^   husband  survive^  he   may  support  an  action  of  tres- 

pass, Sec.  for  any  injury  to  the  land  of  the  wife  committed  du- 
ring the  coverture,(rf)  but  not  an  action  merely  for  the  battery 
of  the  wife,  without  staling  special  damage  to  himself;  and  in 
the  latter  case,  if  the  wife  die  pending  the  action  it  will  abate.((?) 
If  the  wife  survive,  any  action  for  a  tort  committed  to  her  or  to 
her  personal  or  real  property  before  marriage,  or  to  her  per- 
son or  real  estate  during  the  coverture,  will  survive  to  her  ;(J") 
and  she  may  have  an  action  for  a  trespass,  to  her  land  commit- 
ted as  well  in  the  life-time  of  her  husband,  as  since  his  de- 
cease.(g") 

The  consequences  of  a  mistake  in  the  proper  parties  in  the 
case  of  husband  and  wife,  may  be  collected  from  the  prece- 
ding observations,  and  seem  to  be  nearly  the  same  in  actions  in 
form  ex  delicto,  as  in  those  rx  contractu.Qi)  If  the  wife  be 
improperly  joined  in  the  action,  and  the  objection  appear  from 
the  declaration,  the  defendant  may  in  general  demur,  move  in 


(v)  1  Bulst.  21.     7.   H.   IV.  15.  A.  (r)  Ante,  62,  3.  n.  u.     1  Salk.  119. 

3   H.   VI.   53.      Com.    Dig.   Bur.   k  n.  b. 

Feme,  V.  (J)  Com.  Die-.  Bar.  k  Feme,  Z. 

(:)Ante,  61.     1  Roll.  Abr.  347.  R.  (e)  Freera.  2'25.     Yelv.  89. 

pi.  1.  (/)  R.  T.  Hardw.  398,  9.     Freem 

(a)  Bro.  Bar.  k  Feme,  p\  2S.  41.  224. 

16.     Selwyn,  X.   P.  249.     Com.  Ui-  (^0    Palm.    313.      Com.   Dig.   tit. 

Bar.  k  Feme,  X.  Bar.  k  Feme,  2  A.                     ' 

(/))  Id.  ibid.    2  Wils.  423,  4.    2  Bl.  {h)  Ante,  22,     3  T.  R.  631. 
Rop.  1236.  Cro,  Car.  418.  437.  Com. 
Di^.  Bar.  k  Feme,  V.  X.     Pleader,  2 
A.  1. 


IN  FORM  EX  DELICTO.  64 

arrest  of  judgment,  or  support  a  writ  of  error,(0  though  wc  I-  Plaintiffs. 
have  seen  that  after  verdict  the  mistake  may  be  aided  by  in- 
tendment ;(A-)  and  if  the  husband  sue  alone  when  the  wife 
ought  to  join,  either  in  her  own  right  or'in  autre  droit,  he  will 
be  nonsuited ;  for  though  in  general  the  non-joinder  of  plain- 
tiffs in  an  action  for  a  tort  can  only  be  pleaded  in  abatement.(/) 
yet  in  those  cases  the  party  suing  had  some  legal  *interest  in  his  *■   55 

own  right,  in  the  property  afi'ected,  but  the  husband  in  the  case 
of  the  battery,  Stc.  of  his  wife  has  received  no  personal  injury 
unless  a  loss  of  her  society  or  expense  ensued. (?«) 


In  personal  and  mixed  actions,  in  form  ex  delicto^  the  person  //• 

...  .  ,        ,      ,  .  ,r         u-  •     •  Defendants. 

committmg  the  mjury  either  by  himselt  or  his  agent,  is  in  ge-  As  '  between 

neral  to  be  defendant ;  but  real  actions  can  only  be  supported  ^'^i-tiel'^'^'i'd 
asrainst  the  tenant  of  the  freehold. («)     All  natural  persons  are  ^*'th     refer- 

.  .  .  ^  eiice  W  their 

liable  to  be  sued  for  their  own  tortious  acts,  unconnected  with  UabiUtij. 
or  in  disaffirmance  of  a  contract ;  and  therefore  though  an  in- 
fant cannot  in  general  be  sued  in  an  action  in  form  ex  contrac- 
tu, unless  for  necessaries,  he  is  liable  fof  all  torts  committed 
by  him,  as  for  slander,  assaults,  and  batteries,  &c.  ;(c3)  and  also 
in  detinue  for  goods  delivered  to  him  for  a  purpose  which  he 
has  failed  to  perform,  and  which  goods  he  refuses  to  return.(/z) 
But  a  plaintiff  cannot  in  general,  by  changing  his  form  of  ac- 
tion, charge  an  infant  for  a  breach  of  contract,  as  for  the  neg- 
ligent or  immoderate  use  of  a  horse,  &c.  ;(</)  nor  can  he  be  a 
trespasser  by  prior  or  subsequent  assent,  but  only  by  his  own 
act.(r)  A  married  woman  is  liable  for  torts  actually  commit- 
ted by  her,  though  she  cannot  be  a  trespasser  by  prior  or  sub- 
sequent assent  ;(s)  and  though  a  lunatic  is  not  punishable  cri- 
minally, he  is  liable  to  a  civil  action  for  any  tort  he  may  coiti- 


0)  1  Salk.119.114.     2B1.  R.  1236.  (o)  8  T.  R.  336,  T.     Bac.   Ahr.   In- 

Selvvyn,  N.  P.  244.  250.  fancy,  H. 

(A?)  Ante,  62.  (/j)  1  Xew  Rep.  140. 

(0  Ante,  53.  (ry)  8  T.  R.  335. 

(/h)  Freem.  225.     Yelv.  89.  1  Salk.  (r)  Co.  Lit.  180.  b.  n.  4. 

119.  (i)  Id.  ibid.     Post,  67 

(??)  Booth,  3.  28, 9.    3  Lev.  330. 


56^  OF  THE  PARTIES  TO  THE  ACTION 

Jf-  \rat.{t)  Cor/iorations  *may  be  sued  in  that  character  in  many 
instances  for  damages  ansmg  from  the  neglect  ot  a  duty  impo- 
sed on  them  by  particular  statutes,(w)  but  they  cannot  in  gene- 
ral be  sued  in  that  character  in  trespass  or  replevin,  and  the 
action  must  be  brought  against  each  person  who  conimit- 
ted  the  tort  by  name.(7y)  An  action  cannot  be  supported 
against  the  inhabitants  of  a  county  who  are  not  a  corporation,  x) 
nor  against  a  judge,  nor  a  justice  of  the  peace,  acting  judi- 
cially, and  who  has  not  exceeded  his  juiisdiction,  however  er- 
roneous his  decision  or  malicious  his  molive,(j/)  nor  against  a 
juryman,(z)  nor  the  attorney-general,(o}  nor  a  superior  naval  or 
iTiilitary  ofTicer  for  any  act  within  the  scope  uf  his  authority. (<!i) 
A  cestui  que  trust  cannot  in  general  support  any  action  at  law 
against  his  trustee  foi-  any  mismanagement  of  the  estate  ;(c) 
nor  can  one  joint-tenc.r.t  or  tenant  in  common  of  a  personal 
chattel,  sue  his  co-tenant  at  law  in  trover,  or  for  taking  away  the 
eh?tttel ;((/)  but  for  destroying  or  spoiling  it  an  action  may  be 
supported  ;(<)  and  one  tenant  in  common  of  real  property  may 
support  ejectment  or  trespass  for  mesne  profits  against  his  co- 
tenant,  when  there  has  been  an  actual  ouster,(/)  or  case  for 
waste  to  the  land  or  trees. (5-) 
*  fi7  *A\\  persons  who  direct  or  assist  in  committing  a  trespass,  or 

the  conversion  of  personal  property,  are  in  general  liable  as 
principals,  though  not  benefited  by  the  act  ;(A)  and  therefore 
trover  hiay  be  supported  against  a  person  who  illegally  makes  a 
distress  or  seizes  goods,  though  the  same  were  taken  by  him  in 
the  character  of  builiff  for  another,  or  as  a  custom-house  officer, 

(?)  Hob.  13k  2  East,  10*.  Bac.  Ahr.         {b)  1  T.  R.  49.3.  550.  784. 
Trespass,   G.  Idiot,  E.  2    Roll.   Abr.         (c)  Sa'iiul.  on  U.  hs.  T.  222. 
5-ir.  pi.  4.  E.  (</)  4  East,  121.     2  Saund.  47.  f.  g;. 

00  2  T.  R.  672.  1  T.  R.  051.     Co.  Lit.   100.     S  T.  R. 

\;v)  8  East,  229,  230.  Kyd  on  Corp.  145,  G.     1  East,  3G8.     Com.  Dig.  Es- 

225.  22  Ass.  pi.  G7.     Bro.  Abr.  Tres-  tate,  K.  S. 

pass,  pi.   339.      ^'iu.   Abr.    Corpora-         (e)  Id.   ibid.     8   T.   R.    145,   C.     I 

tions,   K.   pi.   22.   P.   pi.  2  Q.  pi.  15.  Ld.  R')ym.  737.  739. 
Bac.  Abr.  Corporations,  E.  2.  5.  Dis-         (./)  3  A\ils.  118.     Run.  Eject.  191, 

seisin,  B.     1  East,  555.  Sic.  443. 

(.r)  2  T.  R.  667.     9  Co.  112.  b.  11.3.         (.?)  *  ^.ast,  117.  121.    Co.  Lit.  200. 

ly)  1  Salk.  300,  7.     Vau»h.  138.    5  a.     8  T.  R.  145,  6. 
T.R.I  86.     12  Co.   24.     Ld.   R:.})n.         (A)  2  Saund.  47.  i.     Bui'.  N.  P.  41- 

466.  "  6  T.  R.  .300.     1  B.  k  P.  309.    2  Esp 

{z)  1  T.  R.  51.3,  14.  535.  Rep.  553. 

{a)  I  T.  R.  514.  535.  « 


IN  FORM  EX  DELICTO.  67 

Sccfi)     And  where  several  are  concerned,  they  may  be  jointly  JI- 

,  .  D-i'i'iulaiih. 

sued,  whether  they  assented  to  the  act  betore  or  alter  it  was 
committed, (X.-)  vniless  the  party  be  an  infant  ovfcmc  covert,  wlio 
we  have  seen,  cannot  be  sued  in  respect  of  a  subsequent  as- 
sent,(/)  and  no  person  can  be  guiky  of  a  forcible  entry  by  such 
assent. (?«)  Nor  can  a  pound-keeper  be  sued  merely  for  re- 
ceiving into  the  pound  a  distress  illegally  taken. (?z)  If,  how- 
ever, a  person  sue  out  execution,  and  give  a  bond  of  indemnity 
to  the  sheriff  to  induce  him  to  sell  the  goods  of  another,  this  is 
a  sufficient  interference  to  subject  him  to  an  action  ;(o)  so  if 
he  be  in  company  with  the  sheriff's  officer  at  the  time  of  the 
execution  ;  {Ji)  but  the  mere  act  by  a  stranger  of  making  an 
inventory  or  drawing  a  notice  of  distress  is  not  such  an  interfe- 
rence as  will  subject  him  to  an  action  ;((/)  and  though  trespass 
may  be  supported  against  a  sheriff  for  his  *buiiilV'b  taking  the  ^    f,g 

goods  of  J  under  an  excculion  against  ■S,(r)  it  cannot  aguinsi 
the  plaintiff  in  the  action,  unless  he  actually  inlerfered  or  as- 
sented to  the  levy.(.«) 

In  some  cases  a  party  may  be  liuble  to  be  sued  for  a  tort, 
though  in  fact  he  neither  committed  the  act,  nor  assented  to 
the  commission  of  it.  Thus  a  ?naster  or  /irinci/ial  is  liable  to 
be  sued  for  injuries  occasioned  by  the  iicgUgciice  or  iinskilful- 
ness  of  his  servant  or  agent  whilst  in  the  course  of  his  em.ploy, 
and  though  the  act  was  obviously  tortious,  as  if  he  laid  lime 
in  the  street  without  any  direction  for  that  purpose  from  the 
principal  :{f)  so  for  the  negligent  driving  of  a  carriage  or  na- 
vigating a  ship,(iO  or  for  a  libel  inserted  iu  a  newspaper  of 
which  the  defendant  was  the  proprietor  ;(to)  and  the  party  in 
a  cause  is  liable  for  any  irregularity  in  the  proceedings  of 
his  attorney  \{x)  and    the   principal  is  liable  not   only  for  the 


(0  Id.  ibid.  (i)  3  Wils.  309. 

(A)  2  Bl.  Kep.  1053.   I  Sulk.  409.  2  (s)  Id.  ibid. 

Roll.  555.1.7.     Com.  Dig.  Trespass,  (0    1  East,  106.     2   T[.   ]!l.  4^2. 

C.  1.    Co.  Lit.   180.  b.  n.  4.     Cowp.  3  Wils.  317.     1   B.  k   P.  4ui.     1  Bl. 

478.     3  Wils.  377.     Lane,  90.  Com.  431.     2  Lev.  172.     Ld.  Kaym. 

(0  Co.  Lit.  180.  b.  u.  4.     Ante,  05.  739.     Dyer,  238.     3  Mod.  ,323. 

\m)  Id.  ibid.  (»)  Li.  ibid.     1  E?..st,  lOG. 

(,/)  Cov.  p.  47G.  (^0  1  B.  8c  P.  409. 

(«)  Bull.  N.  P.  41.  (.r)  2  Bl    Kep.  Six     3  Wih.  .341 

(J,)  I  B.  k  P.  309.  3C8. 

{q)  2  Ksp.  Kep.  5.';3 

Vol.  I.                              [  7  ] 


08  OF  THE   PARTIES  TO  THE  ACTION 

//.  acts  of  those  immediately  employed  by  him  and  by  his  steward 

Defendants,  ,  ,  r        i  r  i  ■ 

or  general  agent,  but  even  lor  the  act  ot   a  sub-agent,  however 

remote,  if  committed  in  the  course  of  his  service. (t/)  But  a 
party  is  not  liable  for  the  act  of  another,  unless  the  latter  acted 
as  his  servant  at  the  time  when  the  injury  was  committed  ;  and 
therefore  a  person  who  hires  a  post-chaise  is  not  liable  for  the 
negligence  of  the  driver,  but  the  action  must  be  against  the 
*   69  *drivcr  or  the  owner  of  the  chaise  and  horses  ;(z)  and  if  a  ser- 

vant or  agent  rjilfully  commit  an  injury  to  another,  though  he 
be  at  the  time  engaged  in  the  business  of  the  principal,  yet  the 
principal  is  not  in  general  liable  ;  as  if  a  servant  vjilfuUy  drive 
his  master's  carriage  against  another's,  or  ride  or  beat  a  dis- 
tress taken  damage  feasmil. {a)  However,  on  piincii)lcs  of  pub- 
lic policy,  a  sheriff  is  liable  civilly  for  the  trespass,  extortion  or 
other  wilful  misconduct  of  his  baiiifr;(('^)  and  inn-keepers  and 
carriers  are  in  the  nature  of  insurers  of  the  safety  of  personal 
property  entrusted  to  their  care.(c) 

The  distinctions  between  the  different  liabilities  of  the  owner 
of  anhnah  are  important,  particularly  as  they  affect  the  form 
of  the  action.  The  owner  of  domestic  or  other  animals  not 
necessarily  inclined  to  commit  mischief,  as  dogs,  horses,  and 
oxen,  is  not  liable  for  any  injury  committed  by  them  to  the  person 
or  personal  property,  unless  it  can  be  shown  that  he  previously- 
had  notice  of  the  animal's  mischievous  propensity,  or  that  the 
injury  was  attributable  to  some  other  neglect  on  his  part,  it  being 
in  general  necessary  in  an  action  for  an  injury  committed  by 
such  animals  to  allege  and  prove  the  scienter  ;  and  though  no^ 
tice  can  be  proved,  yet  the  action  must  be  case  and  not  ^re«- 
„  _  pass.{d)     But  if  the  owner  himself  acted  illegally,  *he  may  be 

liable  even  as  a  trespasser,  as  where  a  person  m  company  with 
his  dog  trespassed  in  a  close  through  which  there  was  no  foot- 
path, and  the  dog,  without  his  concurrence,  killed  the  plain- 


(;/)  1  B.  k  P.  404.     6  T.  R.  41 1.  (c)  5  T,  II.  273.     1  T.  R.  27.     5  T. 

(;)  5  Esi».  Rep.   35.  ace.     1  B.  k  R.  .JSy.     J(/nes  on  Bailment,  104. 

p.  409.     semb.  contr.  {(I)  12  Mod.  33.3.     Ld.  Raym.  608^ 

(a)  1  East,  106.     3  Wils.    317.     I  Dyer,  23.  pi.  1G2.     Cio.  Car.  2.'>4.     2 

Salk.  2S2.     2  Roll.   Abr.  553.     1  Bl.  Salk.  662.     Bac.  Abr.   Action  Case, 

Com.  431.  F.     Lutw.  90.     Peake,  L.  E.  251,  2, 

(f>)  2  T.  R.  154.     3  Wils.  317.     8  Fosl,  vol.  2.  238^  9. 
T.  R.431. 


IN  FORM  EX  DELICTO.  70 

t>fT*s  tleer.(f )    And  if  a  person  let  loose  or  permit  a  dangerous  U- 

1  1  I      •     ,  •    r  ,      •     ,•   I  1  Defendants, 

animal  to  go  at  large,  and  mischiet  ensue,  he  is  liable  as  a  tres- 
passer, the  law  in  such  cases  presuming  notice  to  the  defend- 
ant of  the  mischievous  propensity  of  such  animal. (/)  And 
with  respect  to  animals  maiisuetts  ?ia£ura,  as  cows  and  sheep, 
as  their  propensity  to  rove  is  notorious,  the  owner  ic  bound  at 
all  events  to  confine  them  on  his  own  land,  and  if  they  escape, 
and  commit  a  trespass  on  the  land  of  another,  unless  through 
the  defect  of  fences  which  the  latter  ought  to  repair,  tiie  owner 
is  liable  to  an  action  of  trespass,  though  he  had  no  notice,  in 
fact,  of  such  propensity.  (^)  But  for  damage  done  by  animals,  &c. 
fcra  natura-  escaping  from  the  land  of  one  person  to  that  of 
another,  as  by  rabbits,  pigeons,  &c.  no  action  can  be  supported, 
because  the  instant  they  escaped  from  tlie  land  of  the  owner^ 
his  property  in  them  was  determined  ;(/;)  and  a  person  cannot 
be  liiible  for  the  act  of  cattle  unless  he  were  the  general  own- 
er, or  he  actually  put  them  into  the  place  where  the  ii)jury  was 
committed  ;Cz)  and  if  a  servant  or  a  stranger  without  the  con- 
currence of  the  owner,  chase  or  put  his  cattle  into  *another*s  ^  7] 
land,  such  owner  is  not  liable,  but  the  action  must  be  against 
the  servant  or  stranger,  who,  as  it  has  been  said,  guins  a  spe- 
cial property  in  the  cattle  for  the  time  (/() 

The  liability  to  an  action  in  respect  of  real  property,  may  be 
for  misfeasance  ov  nialfcasarice^  as  for  obstructing  ancient  lights  j 
or  for  noyifeasance^  as  for  not  repairing  fences, (/)  private 
\vays,(7M)  water-courses,  &c.  In  these  cases  the  action  should 
in  general  be  against  the  occupier,(n)  and  not  against  the  own- 
er, if  the  premises  were  in  the  possession  of  his  tenant,  unless 
hp  covenanted  to  repair  :(,o)  but  if  the  owner,  having  erected  a 
nuisance,  demise  the  land,  an  action  may  be  supported  against 
him,  though  out  of  possession,  i^or  the  continuance  of  it,  for  by 


(e)  4  Burr.  2(f92.     2LfV.  172.  (A)  5  Co.  104.  b.     Cro.  Car.  387 

(/)  3  East,  .59.1,  6.     12  Mod.  333.  Bun-.  2.i9.     Bac.  Abr.  Game. 

Ld.   Haym.   15S3.     BidC.  Abr.    Action  («)  I  Saund.  27. 

Case,  F.  (/c)  Cro.  Abr.  Trcsp.iss,  pi.  435. 

C?)  12  Mod.  335.     Ld.  Rnym.  606.  Roll.  Abr.  553.     1  East,  107. 

1583.     Dyer,  25.  pi.  162.     Vi.i.    Abr.  (/)  4  T.  R.  .US. 

J'ences.     Trespa.ss,   B.  vol.   20.    124.  ("0  3  T.  R.  766. 

PopI).  161.  Sir  W.  Jones,  131.  Latch.  \n)  4  T.  I^  318. 

119.    Salk.  602.  (o)  1  H.  Bl.  55». 


71  OF  Tlii:  PARTIES  TO  THE   ACTION 

'f-  llie  demise  he  uffirmecl  such  continuance  ;(/')  and  every  occu- 

l.'c/'cnilaii!^.        ...  ,  .  „,  .  I'll 

picr  IS  liai)le  lor  the  contmnance  ot  the  nuisance  on  nis  land, 

he.  though  erected  by  another  if  he  refuse  to  receive  the  same- 
after  notice. (7)  When  there  are  several  ovirners  or  persons 
cliargcablc  as  joint-tenants  or  tenants  in  common,  in  respect 
of  their  real  property,  thoui^h  the  action  be  in  form  ex  delicto  they 
should  all  be  made  defendants,  or  the  party  who  is  sued  alone 
may  plead  in  abatement. (r) 
Agnins,t   an  Jt  [y^^^  been  decided  that  trover  cannot  be  supported  aeainst  a 

-t-    72  servant,  for  an  unlawful  int{-rineddling;  *\vith  the  goods  of  ano- 

ther, l)y  the  command  of  his  master,  unless  such  intermeddling 
amount  to  a  trespass,  on  the  ?^round  that  it  would  be  extremely 
inconvenient  if  a  servant  were  bound,  before  he  acted,  to  ascer- 
tain his  master's  right,  though  it  Avas  admitted  that  the  com- 
mand of  a  master  to  do  an  a])parent  wrong,  would  constitute  no 
excuse  ;(&)  but  this  doctrine  appears  to  have  been  overruled, 
and  trover  may  be  supported  against  a  servant  or  agent,  or  any 
other  person,  who  unlawfidiy  converts  goods  to  the  use  of  ano- 
ther,(0  and  even  against  a  custom-house  officer,  who  seizes 
goods  in  that  character  ;(iO  and  replevin  or  trespass  may  be 
supported  against  the  principal,  or  the  bailiff  who  made  the  dis- 
tress by  his  command  ;(to)  and  it  is  clear,  that  a  servant  cannot 
plead  the  command  of  his  master  or  principal,  to  what  in  point 
of  law  is  a  trespass,  though  he  might  be  ignorant  of  the  me- 
rits.(x)  However,  for  deceit  on  the  sale  of  goods,  as  for  a  false 
warranty,  in  general  when  the  agent  acted  in  pursuance  of  the 
direction  of  his  principal,  the  action  must  be  against  the  lat- 
ter ;(v)  nor  can  an  action  be  supported  against  an  attorney  for 
a  malicious  arrest  :(z)  and  a  servant  or  deputy  cannot  be  charged 


C/0  I  Sii'.k.  4G0.     4   T.   R.   3':0.     ]  (-.r)  2  Roll.  Ahr.  4.)1. 

B.  k  F.  409.  (x)  '2  Mod.  244.     .3  Lev.   352.     15 

(q)  Com.  Dig.  Action  Case,  Nui-  "\~iii.  xVlir.  316 .     'J  Yin.  xVbr.  CI.  [jI.  3, 

sauce,  B.     J'ust,  vol.  '2.  333.  n.  c.  4. 

■     (r)    1   Sauiul.   -m.     5   T.    R.  651.         (</)  Com.  Difc.  Action  Case  for  De- 

Post,  70.  coit,  R.     Ante,  24. 

(a)  2  :,Io(l.  242.     12  Mod.  4SS.  (r)   1    IMod.   2()'.>.     Roll.  Abr.    05. 

(0  I  WJls.    328.     'i  Stra.   813.     2  Bac.  Abr.  Action  Case,  B.     3  Wils. 

Saund.  47.  i.     Bac.  Abr.   Trover,  E.  379.     1  Holl.  Rep.  4U9. 

(w)  5  Burr.  '26:^7.     6  T.  R.  300      3 
Wils.  146. 


IN  FORM  EX  DELICTO.  72 

us  such,  for  a  mere  ?io?ifiasa}ice,  but  the  action  must  be  against     ^   J^- 

Defendants. 
the  principal ; (a)  but  for  *?msfeasancc  or  malfeasance ■,  an  action  *    73 

may  be  supported  against  a  servant  or  deputy,  though  not  in  that 
character,  but  as  a  wrongdoer  Thus  if  a  bailiff"  who  has  a  war- 
rant from  the  sheriff  to  execute  a  writ,  suffer  his  prisoner  by 
neglect  to  escape,  the  action  should  be  against  the  sheriff,  and 
not  against  the  bailiff;  but  if  the  bailiff  voluntarily  Wxxxi  the  pri- 
soner loose,  the  action  may  be  brought  against  the  bailiff,  for 
then  he  is  a  kind  of  wrongdoer  or  rescuer. (6)  In  general,  how- 
ever, all  actions  for  breach  of  duty  of  the  office  of  sheriff,  8cc. 
must  be  brought  against  the  high-sheriff,  though  for  the  default 
of  the  under-sheriff  or  bailiff  ;(c)  and  no  action  is  sustainable 
against  an  hilermediate  agent  or  steward,  for  damage  occasioned 
by  the  negligence  of  a  sub-agent,  but  the  actionmust  be  against 
the  principal,  or  the  person  who  actually  committed  the  inju- 
ry/f/) 

There  are  some  torts  which  in  legal  consideration  may  be  sjly.  Witli 

,  ,  ,  ,  ~  ,  .    ,         .   .  .  ,  reference   to 

commuted  by  several,  and  lor  Avhich  'a  joint  action  may  be  sup-  the  number  of 

ported  against  all  the  parties  ;  but  if  in  legal  consideration,  several  *^'"''  P''"i"^'^- 

cannot  concur  in  the  act  complained  of,  se/iarate  actions  must  be 

brought  against  each  ;  thus  a.  joint  action  may  be  brought  against 

several  for  a  malicious  prosecution,  an  assault  and  battery,  or 

for  composing  and  publishing  a  libel, (<>)  for  not  setting  out 

tithe,(y)  or  for  keeping  a  dog  to  kill  *game,  not  being  qua-  ^^    74 

lifted  ;(§•)  but  a  joint  action  cannot  be  supported  against  two  for 

verbal  slander,  and  there  ought  to  be  separate  actions  against 

each  ;(/i)  nor  will  debt  on  a  penal  statute  lie  against  several  for 

what  in  law  is  a  separate  offence  in  each,  as  against  two  proctors 

for  not  obtaining  and  entering  their  certificates,(/)  or   against 

several   for  bribery, (A-)     And  if  a  joint  action  of  trespass  be 


(«)  12  Mod.  488.     Co-^vp.  40,3.  (/)  Carth.  3G1.     2  \jia.  Abr.  70. 

(i)  1-2  Mod.  488.     I  Mod. '20<J.     1  i>\.^ll.                                 j 

Salk.  18.     1  Ld.  Kavm.  C.i5.  (^)  '2  East,  573. 

(r)  Cowp.  40.x     Latch.  ISr.     2  T.  (/;)   Id.  ibid.     2   Wils.  227.     Dyer, 

!l.  154.     2  131.  Kep.  8,32.  'JU.    2.Mod.  I'.l.a.     Palm.  313.     Cro.  Jac.  647*     1 

'■-'•  liuM.  l.i.     1  Roll.  Abr.  7S1.     2  Yin. 

0/)6T.  R.  411.     1    B.  &c    r.   405.  Abr.  C4.  pi.  27. 

!li).     Cowp.  40f>.  (j)  I   New  Rep.  245.     2  East,  574. 

(c)  2Sam\d.  117.  a.  LiUch.  262.      2  {k)  GriJJith   v.  Station  and  others, 

Burr.  985.     \\m-     \1iv    \c-,  ions  in  ge-  .Tudgment  in  Error  iti  the  House  of 

neral,  ( '.  Lords  tV'  p.,  llie  E.\clieqiier  in  Ireland, 

irth  April,  A.  U.  ISOR. 


74  OI^  THE  PARTIES  TO  THE  ACTION 

}^  brought  as^ainst  several  persons,  the  plaintiff  cannot  declare  for 

jiejc'iitliiiiH. 

the  assault  and  battery  of  one,  and  for  the  taking  away  of  goods 

by  the  others,  because  these  trespasses  are  of  several  natures. (/) 
These  rules,  however,  do  not  obtain  in  criminal  proceedings  so 
as  necessarily  to  defeat  an  indictment  against  several  for  distinct 
offences  in  separate  counts,  though  the  court  have  a  discretion- 
ary power  to  quash  the  indictment,  where  inconvenience  might 
arise  from  the  joinder  of  many  persons  for  different  offences. (m) 
If  several  persons  be  made  defendants  jointly,  where  tlic  tort 
could  not  in  point  of  law  be  joint,  they  may  demur,  and  if  a  ver- 
dict be  taken  against  all,  the  judgment  may  be  arrested  or  re- 
versed on  a  writ  of  error  ;(/0  but  the  objection  may  be  aided  by 
the  plaintiff's  taking  a  verdict  against  one  only  ;(o)  or  if  several 
*   75  damages  be  assessed  *against  each,  by  entering  a  nolle  /iroscqui 

as  to  one  after  the  verdict  and  before  judgment.(/0  In  other 
cases,  where  in  point  of  law  several  persons  may  be  jointly 
guilty  of  the  same  offence,  the  joinder  of  more  persons  than 
wei'e  liable  in  a  personal  or  mixed  action  in  form  ex  delictOy 
constitutes  no  objection,  and  one  of  them  may  be  acquitted, 
and  a  verdict  taken  against  the  others. (ry)  On  the  other  hand, 
if  several  persons  jointly  commit  a  tort,  the  plaintiff  in  general 
has  his  election  to  sue  all  or  any  of  the  parties,  because  a  tort 
is  in  its  nature  a  separate  act  of  each  individual ;  and  therefore 
in  actions  in  form  ex  delicto,  such  as  trespass,  trover,  or  case  for 
walfcasance,  against  one  only  for  a  tort  committed  by  several, 
he  cannot  plead  the  non-joinder  of  the  others  in  abatement  or 
in  bar,  or  give  it  in  evidence  under  the  general  issue  ;  for  a  plea 
in  abatement  can  only  be  adopted  in  those  cases  where  regular- 
ly all  the  parties  inust  be  joined,  and  not  where  the  plaintiff  may 
join  them  all,  or  not,  at  his  election. (r)  And  even  if  it  appear 
from  the  declaration  or  other  pleadings  that  the  tort  was  joint- 
ly committed  by  the  defendant  and  another  person,  no  objec- 


(/)  2  Saiind.  117.  a.     Sly.  153,  4.    3         {p)  1  Saimd.  207.  a. 
Esp.  Rep.  '202.  4.  (7)  3  East,  02.     2  East,  674.     Bac. 

{m)  8  E.ist,  4f),  7.  Ahr.  Action  of  Qui  J;ara,  D.     2  Roll. 

(7/)  1  New  Rep.  245.  2  Saund.  11".  Abr.  707.     Lane,  19.  59.    Cowp.  610 
b.  n.     IJac.  A!)!-.  Actions  in  general,         (?•)  Id.  ibid.     1  Saimd.    291.  d.     5 

C.     I  Roll.  Abr.  7S1.     Sty.  349.  T.  K.  649. 

(0)  Id.  ibid. 


IN  FORM  EX  DELICTO.  75 

lion  can  be  taken. (.v)     And  this  rule  ol)tains  not  only  in  actions  J^ 

"    ,  ,  jjcfcnditntx. 

Strictly  for  torts  unconnected  with  contract,  but  also  in  actions 
in  form  ex  delicto,  though  in  effect  for  the  breach  of  a  contract, 
as  in  case  against  bailees  for  negligence. (^)  There  is,  however, 
a  distinction  between  *mere  personal  actions  of  tort,  and  such  as  -    ^O 

concern  real  property  ;  for  if  one  tenant  in  common  only  be 
sued  in  trespass,  trover,  or  case  for  any  thing  respecting 
the  land  held  in  common,  as  for  not  setting  out  tithe,  8cc. 
he  may  plead  the  tenancy  in  common  in  abatement. («)  And  in 
an  action  of  debt  for  money  lost  at  play,  the  defendant  may  plead 
in  abatement,  that  the  money  was  due  from  others  as  well  as 
from  himself;  such  action,  though  given  by  statute,  being 
founded  on  contract.(TO)  These  distinctions  between  the  effect 
of  too  many,  or  too  few  persons  being  made  defendants  in  ac- 
tions in  form  ex  contractu,  and  in  thbse  ex  delicto,  frequently 
render  it  advisable  to  adopt  the  latter  form  of  action,  when  it 
is  doubtful  who  should  be  made  the  defendants  ;  and  in  an  ac- 
tion on  the  case,  trover,  or  replevin,  no  inconvenience  can  arise, 
Ijecause  if  one  of  the  defendants  be  acquitted,  he  will  not  be 
entitled  to  costs  ;(:r)  though  in  trespass  it  is  otherwise,  unless 
the  judge  certify  that  there  was  reasonable  cause  for  making 
the  acquitted  person  a  defendant.(z/)  A  recovery  against  one 
of  several  parties  lo  a  joint  tort  frequently  precludes  the  plain- 
tiff from  proceeding  against  any  other  party  not  included  in 
such  action  ;(r)  thus  in  an  action  against  one  for  a  battery,  or 
for  taking  away  the  plaintiff's  posts,  or  destroying  grass  in  a 
field  where  several  persons  are  concerned,  the  recovery  against 
one  will   *be  a  bar  to  an  action   against   the  others  ■,{a)  and  *    77 

where  the  plaintiff  had  previously  recovered  in  an  action  against 
his  servant  for  quitting  his  service,  it  was  decided  that  he  could 
not  also  support  an  action  agidnst  the   person   for  seducing 


(4)  1  Saiind.  291.  (^,)  8  k  9  Wm.III.  c.  11.     TiJd, 

(0    3  East,  02.  ace.  1   Saui.d.  291.  SOi),  1. 

J.  G  T.  R.  .369.  couir.  (;)  Cro.  .Tac.   74.    Com.  Dig;.  Ac- 

(»)  1  Saund.  291.  e.     5  T.  R.   051.  tion,  K.   4.  L-     2  B.  k  P.  70,  1.     1 

7    T.   R.    237.      Bac.  Abr.  Jcint-te-  Saund.  207.  a. 

nants,  K.  2  East,  574.  («•)  Yelv.  OS.     2  B.  is  P.  71.     Bull. 

{w)  7  T.  R.  2.57.  N.  P.  20. 

(j-)   2  Slra.   1005.     Tidd,  900,  1. 
KliU:,  33. 


n  OF  THE  PARTIES  TO  THE  ACTION 

away  such  servant  ;(/0)  and  in  these  cases  the  court  will  in  ge- 
neral on  a  summary  application  stay  the  proceedings  in  the  se- 
cond action,  where  it  is  manifest  that  the  entire  damages  have 
been  recovered  in  the  ftibt  (c)  But  where  the  evidence  and 
the  damages  in  the  two  actions  miglit  be  different,  as  where 
two  persons  on  different  occasions  iiave  published  the  same 
libel,  sep.irale  actions  maybe  supported  against  each.((/) 

3(11}-.    Where        As  in   the  case  of  a  breach  of  covenant,  so  in  that  of  torts^i 

the    interest  .  .  .  -  .    . 

has  been   as-  the  assignee  of  an  estate  is  not  liable  for  an  injury  committed 

si^iiec,  '  .  [jefore  he  came  to  the  estate  ;  but  if  he  conlinuc  a  nuisance  he 
may  be  sued  for  such  continuance  ;{c)  though  prior  to  the  ac-, 
tion,  there  should  in  some  cases  be  a  request  and  a  neglect  to 
abate  the  nuisance  •(/)  and  if  a  tenant  for  years  erect  a  nui- 
sance, and  make  an  underlease  to  B,  an  action  lies  against  ei- 
ther ;(§■)  and  if  J  take  tlije  goods  of  C,  and  B  take  them  from 
.'^,  C  may  have  his  action  against  ^^or  B,  at  his  election. (/;) 
4tl>ly.  In  case  At  common  law  upon  the  death  of  the  wrongdoer,  the  reme- 
of  the  -wrong-  <^y  foi'  wrongs  ex  delicto,  and  unconnected  with  contract,  in 
^^''  general  determines;  *and  as  the  statute  4  Edw.  III.  c.  7.  does 


*    78 


not  give  any  remedy  against  personal  representatives,  we  shall 
find  that  few  actions  in  form  ex  delicto,  and  in  which  the  plea 
would  be  not  guilty,  can  be  supported  against  the  executor  or 
administrator  of  the  party  who  committed  tlic  injury. (0  Many 
of  the  preceding  observations  on  the  rule  actio  Jiersonalis  ijiorl- 
tur  cum  persona,  in  its  relation  to  the  death  of  plaintiffs,  are 
equally  applicable  to  the  case  of  the  death  of  the  wrongdoer. (/.) 
For  injuries  to  the  person,  if  the  wrongdoer  die  before  judg- 
ment, the  remedy  determines,  and  there  is  no  instance  of  an 
action  having  been  supported  for  such  injuries,  against  his  per- 
sonal representatives.cz)  In  general  also  no  action  in  form  ex 
delicto,  as  trover,  case,  or  trespass,  can  be  supported  against  an 
executor,  for  an  injury  to  pcrsoval  property,  committed  by  his 


(6)  3  Burr.  13i5.     1   Bl.  IJep.  oS".  (jr)  2  Salk.  4C0.     2  B.  k  P.  409. 

(c)  2  B.  J«  P./71.  (/')  Bmc.  Alir.  Actions,  B. 

(fO  2  B.  &  P/69.  (0  Cowp.  3r4.  3r7.     I  Saund.  216. 

(<>)  Com.   I>ig.    Action  Case,   Xui-  n.l. 

sance,  B.     Ihxr,    320.     2   Sa!k.  460.  {k)  Ante,  SG  to  59. 

IB.  kP.40y".     Ante,  71.  (/)  Cow,,.  .375.     1   Sannrl.    216.   n 

(  /")  Post,  vol.  2.  333.  n.  c.  Com.  Dig.  Administration,  B.  15. 


IN  FORM  EX  DELICTO.  7g 

testator  irm)  though  if  the  testator  converted  the  property  into  -^^• 

...  ...  .p  Defendants, 

inoney,  asaumfisit  lies  agamst  his  executor  ;  or  it  the  property 

c^!me  in  specie  to  the  possession  of  the  latter,  trover  woukl  be 
sustainable  against  him  though  ndt  in  the  churvicter  of  execu= 
tov.{r.)  And  though  we  have  seen  that  debt  may  be  supported 
by  an  executor  for  an  escape  on  final  process,  it  cannot  against 
the  executor  of  a  sheriff  or  gaoler  ;  for  though  the  action  is  not 
in  form  ex  delicto.,  it  is  considered  as  founded  on  a  tort,  the  neg- 
ligence *of  the  deceased  sheriff  ;(o)  but  where  a  sheriff  has  le-  *  ijc 
vied  money  under  an  execution,  and  dies  before  he  has  paid  it 
over,  his  executors  may  be  sued  either  in  debt  or  scire  facias 
upon  his  return  oijierifeciy  or  by  action  of  assmnfisit,  as  for  mo- 
ney had  and  received. (/z)  An  action  cannot  be  supported  against 
an  executor  for  a  penalty  forfeited  by  the  testator  under  a  penal 
statute  ;(7)  and  though  it  has  been  hoiden  that  debt  lies  against 
an  executor  for  treble  the  value  of  tithes  which  his  testator 
ought  to  have  sat  out,  that  decision  has  been  doubted. (r)  At 
commonlaw  no  executor  was  answerable  for  a  devamavit  by  his 
testator  ;(s)  but  by  the  statute  30  Car.  II.  c.  7.  (explained  and 
made  perpetual  by  4  and  5  IV.  &  M.  c.  24.  s.  12.)  "the  exe- 
<'  cutors  or  administrators  of  any  executor  or  administrator,  whe- 
"  ther  rightful  or  of  his  own  wrong,  who  shall  waste  or  convert 
"  to  his  own  use  the  estate  of  his  testator  or  intesiate,  sliaU  be 
*'  liable  and  chargcble  in  the  same  nunner  as  their  testator  or 
"  intestate  would  have  been  if  they  had  been  living."  So  that 
since  these  statutes,  if  a  judgment  be  obtained  against  an  execu- 
tor wiio  afterwards  dies,  an  action  may  now  be  brought  against 
his  executor  or  administrator  upon  the  judgment,  suggesting?, 
devastavit  by  the  first  executor. (^)     But  it  has  been  considered 


(»?)  Cowp.  371.     1   SaUnd.  2l6.  a.  (5)  Cora.  Dig.   AdmiiiistiMtion,  B 

Com.  Dig.  Admiiiiftration,  B.  15.  15. 

(;/)  Cowp.  371.  574.  1  Sauiid.'2lG.  a.  (r)  Sir  t.  Raym.  57.  72.    Viii.  Abr 

(0)  Ante,   58.  Dyer,   322.   a.     Ld.  Executors,  H.  a.   pi.  '21.  27.     Willes, 

IRaym.  973.    Com.  Dig.  Administra-  4'2l. 

tion,  B.  15.     Yin.  Abr.  E.\ccutor,  H.  (s)   3  Leon.    241.       t    Venfr.  29'2 

a.  pi.  t.  7.  20.  Com.  D'::;    Administration,  B.  15. 

(/)')  Cr-o.   Car.   533.     2  Show.  79.  (0  1  Wits  258.     1  Saund.  21P.  c  d 
281.     Gilb.  Exec.  25.     2  Saund.  343. 

Vol.  I.  r  8  1 


80*  OF  THE  PARTIES  TO  THE  ACTION  . 

//.  iha'  an  executor  df  son.  tort  of  an  *execntor  dc  non  tort  cannot  b« 

Defendants.  ■  ■    ■        •  r    t  ,    , 

sued  as  su(  h  h\  virtue  ot  these  statutes. (2/) 

P'or  injuries  to  rtal  properly  no  action  in  form  px  delicto  can  in 
geiieml  be  supported  against  the  personal  representatives  of  the 
vion;j,doer  •,(^iv)  thoup;h  if  trees,  See.  be  taken  away  and  sold  by  the 
testator,  assumpnit  for  money  had  and  received  lies  against  his 
executor,(-i^)  or  trover  if  they  remain  in  specie,  and  the  executor 
refuse  to  restore  them,(?/)  and  a  court  of  equity  will  frequently 
afford  relief  against  the  executor  of  the  wrongdoer,  though  at 
law  the  action  nioritur  cum  /ier.so!ia  ;(z)  and  therefore  where  a 
a  tenant  for  life  cut  down  timber  and  died,  relief  was  decreed 
against  his  executors  in  favour  of  the  remainderman  ;(a)  and 
there  is  an  exception  to  the  common  law  rule  in  the  case  of  the 
executors  of  a  deceased  rector  or  vicar,  8cc.  against  whom  the 
successor  may  support  an  action  on  the  case  for  waste  and  dilapi- 
dations permitted  by  tlie  deceased  (b) 
sthly    In  the       "^  '^^  statute  5   Geo.  II.  c.  30.  only  discharges  a  bankrupt  from 

cHse  of  bank-  deljf.Sy  and  does  not  protect  him  fi-om  liability  to  actions  for  torts; 
ruptey,  Sec.  *  ^ 

as  for  assault  and  buttery, (c)  slan(Ier,(rf)  trespass  for  mesne  pro- 

fivs.(f)  or  trover.(./')  Sec.  unless  the  damages  have  been  ascertain- 

^    q,  ed  by  verdict  *beforc  the  bankruptcy  ;(/")  and  when  the  plaintiff 

has  an  election  to  shape  his  action  in  different  ways,  either  ex 

contractu  OY  ex  diUcto,  if  he  adopt  the  latter  form  of  action,  the 

certificate  will  be  no  bar;(5-)  as  where  the  bankrupt  unlawfully 

discounted  a  bill,  and  embezzled  the  money,  though  the  plaintiff 

might- have  declared  against  him  in  assumfisit  as  for  money  had 

and  received,  in  which  case  the  certificate  would  have  been  a 

bar  to  the  action,  yet  having  declared  in  trover,  it  was  decided 

that  the  certificate  was  no  bar.(/;)     The  same  rules  affect  the 

liability  of  a  person  discharged  under  an  insolvent  act. 


(?0  Andr.  253.   254.  2  Ventr.  .160.  Wille.s,  421.     3  Woodd.  20f),  7. 

(w)  7  T.  R.  732.     1  Saund.  21 6.  n.  (c)  3  Wils.  272. 

1.     2   S:iund.  252.  a.    ii.  7.     3   T.   R.  {d)   1  H.  Bl.  29. 

540.  (e)  Donj?.  562.     2  T.  R.  261. 

(.i)  3 T.  R.  549.     Cowp.  373,  4.  (./")  6  T.  R.  695.     Doug.  167. 

(v)  Co«p.   373,  4.    7T.  R.  13.     1  (/)  1  H.  131.   29.     Cullen,   1st   ed. 

Saund.  21 C.  a.  112. 

(r)   3   Atk.   757.     2   Ves.   560.     2  (.§)  Cnllen,  1st  cd.  391,  2. 

Vtnu-.  360.     3  T.  R.  549-  (/()    6   T.    R.    695.      Cullcn,    113. 

(f()  7  T.  R.  732.  Doug.  167.    7  Vin.  74. 

lb)  3  Lev.  268.     2  T.  R.  637. 


IN  FORM  EX  DELICTO.  81 

Actions  for  torts  committed  by  a  womtm  before  her  maiiiage  IT. 

.,,..,       ,..  ,  r  JJefendant^. 

must  be  against  husband  and  wile  |ointlv;(«)  and  tor  torts  com-  ^ . 

•^  J  /  '  Gtlily.  In    the 

mitted  by  the  wife  during  coverture,  as  for  slander,  assaults,  ca^e  of  mar- 
&c.  or  for  any  forfeiture  under  a  penal  statute,  they  must  also  ^  " 
be  jointly  sued  ;(/■)  and  the  plaintiff  cannot  in  the  same  acti<m 
proceed  also  for  slander,  assault,  or  other  tort  committed  l)y 
the  husb.^nd  alone  ;(/)  nor  can  the  husband  and  wife  be  sued 
jointly  for  the  slander  of  both.('n)  But  for  assaults  or  other 
wrongs,  in  which  two  persons  may  concur,  the  husband  and 
wife  may  be  sued  jointly,  for  the  act  of  both,  and  the  acquittal 
of  the  husband  will  not  preclude  the  plaintiff  from  recover- 
ing.(«)     *Detinue,  can  only   be    supported    against    the    hus-  *    82 

band.(o)  But  if  a  woman  convert  goods  before  her  marriage, 
or  during  it,  without  her  husband,  trover  may  be  supported 
against  her  and  her  husband  ;(//)  and  for  a  conversion  by  hus- 
band and  wife,  the  action  may  be  against  him  alone,  rj)  A/one 
covert  can  only  be  sued  for  her  own  actual  wrong  or  trespass, 
and  cannot  become  a  trespasser  merely  by  lier  previous  or 
subsequent  assent  during  covertui-e  ;Cr)  but  she  may  be  jointly 
stied  with  her  husband  for  enticing  awty  or  harbouiing  the 
servant  of  another.(s)  In  an  action  of  trespass.  Sec.  against 
husband  and  wife,  for  her  to?'t  before  or  during  coverture,  if 
she  die  before  judgment,  the  suit  will  abate  ;  but  if  the  hus- 
band die  or  become  bankrupt,  her  liability  will  continue. (0 

If  the  wife  be  sued  alone,  for  her  tort  before  or  after  mar- 
riage, she  must  plead  her  coverture  in  abatement,  and  cannnt 
otherwise  take  advantage  of  it  ;(20  but  if  the  husband  and  wife 
be  sued  jointly  for  torts  of  which  they  could  not  in  law  be 
jointly  guilty,  us  for  the  slander  of  both,  if  the  objection  ap- 
pear on  the  face  of  the  declaration  the  delendanr  may  deiniu', 
move  in  arrest  of  judgment,  or  .support  error.(TO) 


(0  Bac.  Abr.  BiV.  k  Fe-ne,   L.  (c/)     1    Leon.   ,31 C.      B;;c.  Abr.    dt. 

ik)  Id.  ibid.       1  Hawk.  P.  C.  3,  4.  Detinue. 

Bac.  Abr.  Bar.  k  FeiTio,  I.  (/>)  2  Saund.  i7.  h.  i.     1  Leon.  312. 

(0    2WiU.  ?2r.      Dyer,  19.  a.  pi.  Yelv.  165.     Stlw yn,  N.  P.  252. 

112.    Com.  Dig;.  Bar.  &  Feme,  Y.  {rj)  2  Si,uii<l.  4r.  i. 

(in)    Id.   ibid.       Buc.   .\br.    Bar.  k  (>•)  2  Wils.  22".      Co.  Lit.  ISO.   b. 

Feme,  L.     Sclwyn,  N.  P.  25o.     An-  u.  4.  35".  b.  •  Ante,  6/'. 

te,  '8.  4.  (.?)  2  Lev.  fi.",. 

(«)    1  Ventr.   95.      ace.   Yelv.  106.  (t)  U.  T.  Hardw.  rm.    Cullen,  392. 

1  Brownl.    209.      Com.    Dig.  Bar.  &  ('/)   Ante,  45.  n.  1. 

Feme,  Y.  contr.  (71.)  2  Wils.  227.    Dyer,  19.  a. 


CHAPTER  II. 


or    THE    TORM    OF    ACflOK, 


J  T  is  a  p-eneral  principle  that  if  the  law  confer  a  rjghty  it  will 
also  confer  a  remedy  by  action.  When  once  the  existence  of 
the  right  is  established,  the  courts  will  adapt  a  suitable  remedy, 
except  under  particular  circumstances  where  there  are  no  legal 
grounds  to  proceed  upon  in  a  court  of  law.(x)  At  a  very  ear- 
ly period  specific  forms  of  actions  were  provided  for  such  in- 
juries, as  had  then  most  usually  occurred  ;  and  Bracton,  ob- 
serving on  the  original  writs  on  which  our  actions  are  founded, 
declares  them  to  be  fixed  and  immutable,  unless  by  autliority 
of  parliament. (j/)  The  ancient  forms  of  actions  are  collected 
in  Registrum  Breviwn,  and  were  termed  brevia  formata^  and 
upon  which  Fitzherbert' h  Katura  Brevium  is  a  comment. (z) 
At  common  law  also,  though  no  form  could  be  found  in  the 
Register,  adapted  to  the  nature  of  the  plaintiff's  case,  yet  he 
was  at  liberty  to  bring  a  special  action  on  his  own  case,  and 
writs  were  framed  accordingly  which  v.cre  termed  jnagistra-' 
g4  lia  ;{a)  *but  as   the  officers  of  the  court  were  found  reluctant 

in  new  cases  to  frame  the  proper  remedy,  the  legislature 
thought  fit  to  enforce  the  common  law,  and  it  was  enacted  by 
statute    Westminster  2.(c)    '' that  if  it  shall    fortune  in    the 


(x)    Per  Ld.  Kenyon,    Ch.  J.     1         (a)    8  Co.  47.  b.  48.  a.      2  Bl.  Rep. 
East,  226.     3B1.  Com.  123.     1  Salk.     1113.    3  Wootkl.  168. 
20.     6  Mod.  54.  (c)  13  Edw.  I.  s.  1.  c.  24.     See  ob- 

(t/)  3B1.  Com.  117.  servations  on  tliis  statute,  3  Bl.  Com. 

(r)  3  Bl,  Cora.  183,  4  123.    183,    4.        3  Wood.   168.    and 

Webb's  case,     8  Co.  45.  b,  to  49.  b 


OF  THE  FORM  OF  ACTION.  84 

*'  chancery,  that  in  one  case  a  writ  is  found,  and  in  like  case  In  Ofticra}. 
*'  falling  under  like  law,  and  requiring  like  remedy,  is  found 
"  none,  the  clerks  of  the  chancery  shall  agree  in  making  the 
"  writ ;  or  adjourn  the  plaintiffs  until  the  next  parliament,  and 
"  that  the  cases  be  written  in  which  they  cannot  agree,  and 
"  that  ihey  shall  refer  such  cases, (rf)  until  the  next  parliament ; 
"  and  by  consent  of  men  learned  in  the  law,  a  writ  shcJl  be 
"  made,  lest  it  might  happen  after,  that  the  court  should  long 
"  lime  fail  to  minister  justice  unto  complainants."  To  this 
statute  the  great  encouragement  and  frequency  of  actions  on 
the  case  is  attributed  ;  it  has  however  been  observed  that  it  by 
no  means  follows,  that,  because  in  cases  unprovided  for  by  the 
Register,  the  statute  of  Westminster  2.  directs  an  action  on 
the  case  to  be  framed,  that  such  action  did  not  subsist  at  com- 
mon law.(f) 

Notwithstanding  these  provisions,  it  was  once  thought  that 
the  circumstance  of  an  action  being  of  the  first  impression,  and 
unprecedented,  constituted  a  conclusive  objection  against  it ; 
but  this  notion  no  longer  'prevails,  for  as  we  have  seen,  when-  *   85 

ever  the  common  law  recognises  or  creates  a  legal  right,  it 
will  also  confer  a  remedy  :  and  Lord  Ch.  J.  Pratt,  in  answer 
to  the  objection  of  novelty,  said,  that  he  wished  never  to  hear 
it  urged  again,  for  torts  are  infinitely  various,  not  limited  or 
confined,  for  there  is  nothing  in  nature  that  may  not  be  an  in- 
strument of  mischief,  and  the  special  action  on  the  case  was  in- 
troduced, because  the  law  will  not  suffer  an  injury  without  af- 
fording a  remedy,  and  there  must  be  new  facts  in  every  spe- 
cial action  on  the  case  :(.e)  and  in  the  case  of  Pasley  v.  Free- 
maiu(^f^  Mr.  J.  AMmrst  observed,  that  where  cases  are  new 
in  their  princi/ile  it  is  necessary  to  have  recourse  to  legislative 
interposition  in  order  to  remedy  the  grievance  ;  but  where  the 
case  is  only  new  in  the  i?ista7icc,  and  the  only  question  is  upon 
the  application  of  a  principle  recognised  by  law,  to  such  new 
case,  it  will  be  just  as  competent  to  courts  of  justice  to  appiv 


(f/)  There  appcT.rs  a  mistake  in  the        (f')  Willcs,  5SI.  1  East,  C2G.    Bull, 
statute  book  in  the  translation  which    N.  P.  79. 
is  here  corrected.  (/)  3  T.  R,  63. 

(c)  Per  Blackstonc,  J.    2  Bl.  Kcp. 
1113. 


85  OF  THE  FORM  OF  ACTION. 

In  General  the  principle  to  any  case  which  may  arise  two  centuries  hence* 
as  it  was  two  centuiies  ago  However,  the  novelty  of  an  action 
may  frequently  be  fairly  urged  as  a  strong  fireaumfitive  argu- 
ment against  it,  more  particularly  where  the  rights  which  is 
the  foundation  of  the  action  is  admitted,  but  the  mode  of  re- 
lief is  the  only  matter  in  controversy .(//) 

When  the  prescribed  form   of  action  is  to  be  found  in  the 

*   86  Register,  the  proceedings    should  not    *materially  vary  from 

it,(z)  unless  in  those  cases  where  another  form  of  action  has 
long  been  sanctioned  by  usage  ;(/')  for  ihe  courts  have  con- 
sidered it  of  the  greatest  importance  to  observe  the  boundaries 
of  the  diflferent  actions,  not  only  in  respect  of  their  being  ntiost 
logically  framed,  and  best  adapted  to  tlie  nature  of  each  par- 
ticular case,  but  also  in  order  that  causes  may  not  be  brought 
into  court  confusedly,  and  ini methodically,  and  that  the  record 
may  at  once  clearly  ascertain  the  matter  in  dispute  ;  a  regula- 
tion, which,  since  the  different  legislative  provisions  respecting 
costs,  (the  right  to  which  varies  in  different  forms  of  actions,) 
has  become  of  still  greater  importance. (/) 

Actions  are  from  their  subject  matter  distinguished  into  real^ 
/icjsojiaf,  and  mixed.{m)  Real  actions  are  for  the  recovery  of 
real  property  only,  and  in  which  the  plaintiff,  then  called  the 
demandant,  claims  title  to  lands,  tenements  or  hereditaments 


(/f)    Co.  Lit  81.  b.  n.  2.  per  Ash-  "  of  actions  should  be  kept  distinct." 

hurst,  J.   2T.  R.  6-3.  And   in   I  B.  &   P.    476.    Eyie,    C. 

(/)  JJac.  Abr.  Abatement,  H.  J.  observed,  that    *•  undoabtedly   we 

{k)    Id.   ibid.        4  Co.   94.   b.        3  "  ouo;ht  to  endeavour  to  preserve  the 

Wood.  Vm.  Lect.  169.  "  distinction  of  actions  ;  and  if  it  ap- 

(0  Thus  ill  6  T.  R.  129,   130.  Lord  "pear   upon  the   pleadings   that   ac- 

Kenyon,    C.   J.  said,    "it  is   of  im-  "  tions  of  a  different  nature  have  been 

"  I)r)rtanee  that  the   boundaries   be-  "  mixed,  that  is  a   sufficient    ground 

"  tween  the  dilferent  actions,  should  "for  arresting  the  judgment."     And 

"  be  preserved   and  particularly    in  in   1  Stra.   635.  the  C.   J.    observed, 

"  cases  of  this  kind  ;  for  if  in  an  ac-  "  we  must  keep  up  the  boundaries  of 

"  tion   of    trespass   the   plaintiff   re-  "  actions,    otherwise  we   shall  intro- 

'*  cover  less  than  40s.  he  is  entitled  "  duee   the  utmost  confusion."    See 

"to   no  more    costs   than    damages,  also  II  Mod.  180.      2  Burr.   1114.     2 

"  whereas  a  verdict  with  noniiaal  da-  Saund.  47.  b.     2  Tnst.  434.  Fitzg.  85. 
"  mages  only,    in   an   action    on  the         (w)  See   the  division  of  actions,  3 

"  case  carries  full  costs."     And   in    1  TJl.  Com.  117.     Bac.  Abr.  Actions  ia 

H.  Bl.   243.   Mr.  J.  Wilson  said,    "it  General,  A. 
"  is  highly  necessary   that  the  forma 


OF  THE  FORM  OF  ACTION.  *87 

in  fee-simple,  fce-tuil,  or  for  term  of  life,  *such  as  writs  of  en-  /«  Gemral 
try,  right,  formedon,  clower,(ra)  &c.  Personal  actions  are  for 
the  recovery  of  a  debt,  or  damages  for  the  breach  of  a  contract, 
or  specific  personal  chattel,  or  a  satisfaction  in  damages  for 
some  injury  to  the  person,  personal,  or  real  property.  In 
vnxed  actions,  which  partake  of  the  nature  of  the  other  two, 
the  plaintiflf  proceeds  for  the  recovery  of  some  real  property, 
and  also  for  damages  for  an  injury  thereto,  as  in  the  instance 
of  an  action  of  ejectment  or  of  waste.  I  shall  confine  my  ob- 
servations to  such  personal  and  mixed  actions  as  most  frequent- 
ly occur  in  practice. 

Personal  actions  are  in  form  ex  contractu  or  ex  delicto^  or, 
in  other  words,  are  for  breach  of  contract  or  for  wrongs  uncon- 
nected with  contract.  Those  upon  contracts  are  principally  c«- 
sumfisit,  debt,  covenant,  and  detinue  ;(o)  and  those  for  "wrongs 
are  case,  trover,  detinue,  replevin,  and  trespass  vi  et  arniis. 
AVe  will  take  a  concise  view  of  the  nature  and  particular  ap- 
plicability of  each  of  these  respective  remedies,  and  of  the  ac- 
tion of  ejectment. 


*/.  ASSUMPSIT. 

This  action  is  so  called  from  the  word  assiim/isit,  which, 
when  the  pleadings  were  in  Latin,  was  always  inserted  in  the 
declaration,  as  descriptive  of  the  defendant's  undertaking. (/?) 
It  may  be  d-Jined  to  be  an  action  for  the  recovery  of  damages 
for  the  non-performance  of  a  parol  or  simple  contract,  or  in 
other  words,  a  contract  not  under  seal  nor  of  record,((7)  cir- 


(h)  Aa  to  the  various  real  actions,  claration,    tliough    the     prf^mise    be 

see  Co.   Lit.  239.    n.  1.      r>  Bl.  Coin,  founded    on    a    legial    liability,     and 

Ch.  10.     Bac.  Ahr.  Actions  in  Gene-  though  in  evidence  it  would   be   im- 

val,  A.  plied.     Bac.  Abr.  Assumpsit,  F. 

(o)  The  actions  of  account  and  an-         (g)    Contracts  are   of  record,    by 

i»nity,  though  soint  times  adopted,  do  specialty,    or  by    parol;    the    term 

not     often    occur   in     practice,    and  parol,    or    simpls     contract    signifies 

therefore  I  have   not  obserred  upon  every  contract  not  under   seal  nor  of 

them.  record,  whetheT  verl«d  or  written.  7 

(/»)     The     word     "   undertook,''  T  R,  351. 
uught  always  to  be  inserted  iii  the  de- 


*  88 


% 


88  OF  THE  FORM  OF  ACTION. 

?'•  Assumpsit,  cumstances,  which  distinguish  this  remedy  from  others ;  iot 
the  action  of  debt  is,  in  legal  consideration,  for  the  recovery  of 
a  debt  to  ?i07nine,  and  in  nuniero,  and  moat -frequently  upon  a 
deed  ;(?•)  and  the  action  of  covenant^  though  for  the  recovery 
'■  of  damages,  can  only  be  supported  upon  a  contract  under  stal. 
Atinumfmt  however  is  not  sustainable-  unless  there  have  been 
an  express  contruct.,  or  unless  the  law  vili  iw/dy  a  contract- 
Though  founded  upon  contract^  this  action,  as  distinguishable 
from  the  brevia  J'orniata,  and  falling  within  the  provision  of 
the  statute  of  Westminster,  may  be  termed  an  uction  on  the 
case  ;(s)  it  is  now  however  uniformly  called  an  action  of  us- 
su?fijiiii(,  and  when  the  term  '  caac'  is  adopted  in  a  statute,  or 
otherwise,  an  action  as  for  a  tort,  and  in  loim  ex  delicto  is 
usually  intended,  and  not  an  action  in  iorm  ex  contractu.^t) 

■*   89  *'^  minute  inciuiry  into  the  hitstory  of  this  action  would  at  this 

time  be  matter  of  curiosity,  rather  than  of  practical  utiiiiy  ; 
the  origin  and  progress  of  it  may  be  collected  from  the  reports 
and  works  referred  to  in  the  note  ;(m  and  from  which  it  ap- 
pears, that  till  S/ade's  casc,(w)  a  notion  prevailed,  tiiat  on  a 
sin>ple  contract  for  a  sum  certc^in,  or  for  any  money  demand, 
the  action  must  be  in  debt ;  but  it  was  holden  in  that  case  that 
the  plaintiff  had  his  election  either  to  bring  assum/isit  or  debt ', 
however,  from  the  manner  in  which  the  statute  3  Jac.  1.  c. 
8.  is  penned,  it  is  probable  the  action  of  as6U7npsit  was  not  then 
much  in  use  :  but  afterwards  it  became  very  general, (:c)  and  it 
is  certainly  now  more  frequently  adopted  for  the  recovery  of 
money  due  on  a  simple  contract,  than  the  action  of  debt.  From 
these  cases  it  also  appears,(i/)  that  though  belore  Slude'a  case, 
an  action  on  the  case  might  be  supported,  as  well  for  the  7tcn~ 
feasance  of  a  contract,  as  for  ivisfcacance  or  malfeasance  in  the 
performance  of  it,  yet  from  the  form  of  the   writ  in  Fitzher' 


(r)    IH.  El.   554,  5.  551.  Bu!i.  N.  Vin.  Abr.270.     Bro.  Aljr.  Action  sur- 

'!>.  1G7.  le  CHse,  1)1.  7.  69.  72.      Fitz.a-.    N.    B. 

(.v)  Bac.  Abr.  Assumpsit.     Gill).  C.  94.  A.  n.  a.  145.  G.     1  New  Rep.  295. 

P.  f).     2  Bl.  Rep.  "850.  Bl.  Rep.  850, 

(0  7  T.  R.  36-  C'y)  ^  <^o-  9^  ^'^  ^5.  44  Eliz. 

(m)    Riuldci-  *.  Price,    1  Hen.  Bl.  \J)  Per  Buller,  J.  Douji.  6. 

,'>50  to   555.      IJouo;.    6,    7.      Sfade's  (y)    Bro.    Abr.    tit.    Action   sur  Ic 

cnse,    4  Coke,    91    to  95.      3  Wood.  Case,  pi.  7.  69.  72.      Fitz;^-.  N.  B.  94. 

ItiS,  9.  n.  c.    Reeves,  vol-  3  Si  4.     1  A.  l45.  G.    Bac.  Abr.  Assumpsit,  C- 


♦ 


OF  THE  FORM  OF  ACTION.  89 

bcrt,{z)  it  maybe  collected  that  the  remedy  was  not  similar  to   f.  jsaumpsit. 
our  present  action  of  assutnjisit,  but  resembled  the  present  form 
of  a  declaration  in  case  for  a  tort.{a) 

The  breach  of  all  /larol  or  simple  contracts,  whether  verbal   » 
or  written,  or  express  or  implied,  or  for  *the  payment  of  mo- /  *    90 

ney,  or  for  the  performance  or  omission  of  any  other  act,  is 
remediable  by  action  of  aasumfisit.  Thus  it  lies  to  recover 
money  lent,  paid,  and  had  and  received  to  the  use  of  the  plain- 
tiff; and  in  some  cases,  though  the  money  have  been  received 
lortiously  or  by  duress  of  the  person  or  goods,  it  may  be  re- 
covered in  this  form  of  action,  the  law  implying  a  contract  in 
favour  of  the  party  entitled  ;(6)  as  against  a  person  who  bus 
usurped  an  office,  and  received  the  known  and  accustomed 
fees  of  office,  though  mere  gratuitous  donations  cannot  be 
recovered  in  assum/isit  ;(c)  and  where  the  goods  of  a  trader 
after  his  act  of  bankruptcy  are  taken  in  execution,  or  otherwise 
disposed  of  without  the  concurrence  of  the  assignees,  they  may 
waive  the  tort,  and  declare  in  assu?>i/i&it  for  money  had  and  re- 
ceived,  if  the  goods  have  been  sold  •,((!)  so  it  lies  to  recover 
money  paid  by  a  bankrupt  by  way  of  fraudulent  preference  ;  but 
in  these  cases  it  is  sometimes  most  advisable  to  declare  m  case 
or  trover,  in  order  to  avoid  a  set-off  or  mutual  credit. (e)  In 
some  cases  also  where  money  has  been  extorted  by  duress  of 
goods,  it  may  be  recovered  back  in  assum/mt.{f)  But  the 
proprietor  of  cattle  wrongfully  distrained  damage  feasant,  who 
has  paid  money  for  the  purpose  of  having  them  *redeiivered  to  *   91 

him,  cannot  recover  back  that  money  in  this  action,  because 
such  mode  of  proceeding  would  impose  great  difiiculties  oi^ 
the  defendant,  by  not  appiisuig  liini  of  what  he  was  to  defend  ; 
and  the  law  has  provided  specific  remedies  for  trying  the  le- 
gality of  a  distress,  viz.   replevin,  trespass,  or  trover. (5-)     So 


(2)  Nat.  Brev.    9l.   A.     3  Woodd.         (d)  Id.  ibid.  2  T.  R.  143.     S  Wil.- 
169.     2BI.  Kcp.  850.  304.     'i  151.  Kep.  Si,". 

(a)  1  H.  Bl.  .i.iu,  1.  ((')  4T.  U. 'ill. 

(A)2Ld.  liaym.  1216.     2  Bl.  Rep.         (/)   2  Stra.  91,7.     4  T.   R.  485  — 
827.     3  Wils.  304.         2T.  R.  144.—    Buli.  N.  1'.   13.'. 
Cowp.  419.     Bull.   N.    P.    131.     6  T.         (  r-)  L'o^^p.  414.     C  T.  U.  29S. 
J{.  095.     2  Slra.  916.     4  T.  R.  485. 

(r)    6T.  R.  6S1.      2  .Mod.  200.     1 
T.  R.  403.    Ld.  liavm.  1210. 

Vol.  1.  "  I  9  ^ 


91  OF  THE  FORM  OF  ACTION. 

/  Atsstimpsit.  tliis  action  lies  to  recover  interest,  and  money  due  on  an  account 
slated,  or  for  services  and  works  of  difterent  descriptions,  or , 
for  the  sale,  use,  or  hire  of  goods  or  of  land,  or  other  per- 
sonal or  real  property,  and  upon  bills  of  exchange,  whether 
foreign  or  inland,  checks  on  bankers,  promissory  notes,  po- 
licies of  insurance  on  ships,(/i)  or  on  lives,  or  against  fire, 
when  not  under  seal.  It  lies  also  specially  upon  wagers,(i) 
feigned  issues,(i(')  and  awards,  where  the  submission  was  not 
by  deed  :(/)  also,  to  recover  money  due  on  by-laws,(/w)  fo- 
reign judgments,(n)  or  for  legacies  charged  on  land,(o)  though 
debt  is  more  usual  in  the  last  three  instances ;  or  for  a  specific 
legacy  after  the  executor  has  assented,  but  not  otherwise,(/i) 
nor  for  a  pecuniary  legacy  payable  out  of  the  general  assets  of 
the  testator. (<7)  It  may  also  be  supported  for  money  due  for 
tithes,  where  there  has  been  an  agreement  for  a  composi- 
tion ;(r)  but  unless  there  have  been  such  a  composition  the 

*  92  only  remedy  is  in  a   court  of  equity  or  *in  the  Ecclesiastical 

courts,  or  in  debt  upon  the  statute  2  and  3  Echv.  VI.  c.  13.  to 
recover  the  treble  value  of  the  tithe  omitted  to  be  set  out,  and 
which  act  extends  only  to  prandial  tithe. (r)  Jssufn/isic  also  lies 
for  the  amount  of  tolls  and  port  dutieSjCs)  contributions  to  party 
walls, (0  or  canal  calls,(w)  or  on  promises  to  pay  money  in  con- 
sideration of  forbearance  to  sue  the  defendant  or  a  third  per- 
son,(w)  or  in  consideration  of  services  or  works  done,  or  goods 
sold  to  the  defendant,  or  a  third  person  at  the  defendant's  re- 
quest ;(jr)  and  upon   contracts  to    guaranty,(.y)    indemnify,(r) 


(A)  Post,  vol.  2.  71  to  7J.  'nUic,  Y.     1>.  d.      II  ,11.  N.  P.  188  to 

.  (i)  Post,  vol.  'i.  75  to  77.  lyi. 

(h)  Post,  vol.  '2.  77  to  70.  (;■)  Post,  vol.  2.  185.     Btill.  N.  P. 

(0  Post,  vol.  2.  79  to  82.  188. 

(•»)  1  B.  k  P.  08.  (.v)  Post,  vol.  2. 13  to  IG. 

(;;)    Uoug.    1,     4  T.    R.   -103.       3  {()  14  (i.  III.  c.  78.     5  T.  R.  IjO. 

Kasr,  221.  8  1".  K.  214.     1  B,  k  P.  303. 

(0)  2  Salk.  415.      6  Mod.  27.     Ld.  («)  7  T.  R.  30. 

Raym.  937.  (-.y)  Post,  vol.  2.  82  to  84. 

(/>)  3  East,  120.     4  Esp.  Rop.  154.  (.r)  Post,  vol.  3.  85  to  88. 

Cowp.  289.  (i/)  1  Saund.  211.  a.     5  East,  JO. 

(5)  Id.  ibid.  5  T.  R.  692.      Peake,  (;-)  Post,  vol.  2.  SS.      3  Wils.  262 

73.-    7  T.  R.  667.     1  H.  Bl.  108.  3  East,  169.       2  T.  K.  105.       9B.h 

(r)  Post,  vol.  3.  18.    Bac.  Abr.  tit.  V.  98.  2Ga. 


♦ 


4t 


OF  THE  FORM  OF  ACTION.  92 

i:mploy,(fl)  or  to  serve  and  perform  workS;((!')  and  against  at-  /  Asmmput. 
lornies  and  solicitor5,(c)  wharfin|5ers,(f/)  surgeons, (c)  inn- 
keepers,(/)  carriers  and  other  bailees, (5-)  for  neglect  or 
other  breach  of  duty.  Assum/isit  is  also  the  proper  remedy  for 
a  breach  of  a  promise  to  marry  ;(A)  and  against  a  vendor  for 
not  delivering  goods  bought,(?)  or  against  the  vendee  for  not 
accepting  goods  sold,(^)  or  for  not  delivering  a  bill  of  ex- 
change in  payment  for  the  same  ;(/)  upon  an  express  war- 
ranty of  the  goodness  *or  quality  of  any  personal  chattel,  *  93 
either  on  the  sale  or  exchange  thereof,(»z)  or  upon  an  express 
or  implied  warranty,  as  to  the  property  therein  ;(7z)  and  by  and 
against  vendors  and  purchasers  for  not  completing  a  contract  of 
sale.(o)  So  where  there  has  been  an  express  agreement  not  under 
seal  between  landlord  and  tenant,  or  where  the  law  implies  a 
contract  on  the  part  of  the  latter  to  manage  the  farm  in  a  hus- 
bandlike manner,  this  action  may  be  sustained  for  the  breach 
of  such  contract  ;(/i)  though,  where  the  tenant  has  been  guilty 
of  voluntaiy  waste,  it  is  usual  to  declare  in  case,  unless  there 
be  also  a  money  demand,  which  might  be  included  in  a  declara-  " 
tion  in  asaiunjtsit.^cj)  And  by  the  express  provision  of  1 1 
Geo.  II.  c.  19.  s.  15.  the  executor  of  a  tenant  for  life  may,  in 
this  action,  recover  a  proportion  of  rent  up  to  the  day  of  his 
testator's  death. 

The  action  oi  assuni/isit,  is  in  general  the  only  remedy  against  Wlicn  ihc  pe- 
an  executor  or  administrator,  for  the  breach  of  a  contract  not  Ij"**^^  reme 
under  seal,(r)  and  for  the  recovery  of  money  payable  by  in- 
stalments, where  the  whole  debt  is  not  due  ;(6)  for  (unlesal 


(«)  Post,  vol.  2.  9-2.      2  East,  145.  (ft)  PosV,  vol.  2.  100  to  10.3. 

4Ksp.  Rep.  rr.     Cowp.  43r.  (?))Post,  vol.  2.    ino.  n.  I.     2  Bl 

(6)  Post,  vol.  2.  93  to  97.     5  T.  R.  C.  451.     3  Id.  160.    Cro.  Jac.  474.     1 

143.  Roll.  Abr.  90. 

(c)  Post,  vol.  2.  OCi.  (o)  Post,  vol.  2.  125  to  133. 

((/)  7  T.  R.  171.     Post,  vol.  2.  111.  (p)  Post,  vol.  2.  133.  n.  u.  to  140.  ? 

(f )    I  Saund.   312.   n.  2.      2  Wils.  T    R.  373.     I  East,  154.     1  H.   Bl 

859.  99. 

(/)  S  Co.  32.     5  T.  R.  273.  (7)  Id.  ibid.  3  East,  70. 

(5)  Post,  vol.  2:  103  to  V23.  (r)  1  Xew  Rep.  29.5.     9  Co.  8(5.  b. 

(A)  Post,  vol.  2.  S9  to  92.  (s)  1  11.  Bl.  547.     Cro.  Jac.  504.    2 

(0  Post,  vol.  2.  99.  Saund.  .303.  n.  6.  337.  350.  374.  Pitzf^ 

(/;■)  Post,  vol.  2.  97  to  99.  302.     Com     Di-    \c;ion,   F      3  Co 

(/)    Post,  vol.  2.  8."       4  East.    147  22.  ». 

3B.  ScP.  382,  V. 


93  OF  THE  FOR-M  OF  ACTION. 

1.  As^uinjmt.  m  the  courl  of  exchecjucr,  in  which  wager  of  Ui-,v  is  not  allow- 
ed) (/)  debt  is  not  in  t;eneral  sustainable  against  ap  executor,  nor 
-^■1*  can  that  action  be  *supported,  unless  the  whole  debt  be  due  ;(u) 

also  where  the  simple  contract  was  for  the  payment  of  the  debt 
of  a  third  person,  or  collateral,  as  debt  is  not  Sustainable,  a.v- 
nuin/isil  is  the  only  form  of  action  ;(w)  as  at  the  suit  of  the 
payee  or  indorsee  of  a  bill  of  exchange  against  the  acceptor,  or 
of  the  indorsee  of  a  promissory  note  against  the  maker  ;(x) 
and  on  an  award  to  p/erforni  any  act,  except  to  pay  money,  as- 
.•avn/inic  is  the  only  remedy,  unless  the  submission  were  by 
bondjCz/)  and  formerly  it  was  thought  that  in  an  action  of  debt 
on  simple  contract,  the  precise  sum  stated  to  be  due  in  the  de- 
claration, must  be  recovered,  or  that  the  plaintifl'  would  be  non- 
suited ;(r)  and  therefore  at  that  time  it  was  usual,  when  the 
amount  of  the  debt  was  uncertain,  to  declare  in  assiimjisit  ;  but 
as  this  notion  no  longer  prevails,  and  the  plaintiff  will  recover, 
if  he  prove  any  sum  to  be  due  to  him,  though  less  than  that 
stated  in  the  declaration,  it  is  no  longer  material  in  this  re- 
*  spect,  whether  the  plaintiff  declare  in  annumjisit  or  debt. (a) 

When  It  tlocs        When   a   party    has  a   security  of  a  higher  nature,   he  must 
not  lie.  .  ... 

found  his  action  (hereon,  and  as  the  law  has  prescribed  differ- 
ent forins  of  action  on  different  securities,  assum/isit  cannot  in 
general  be  supported  when  there  has  been  an  express  contract 
under  seal  or  of  record,  but  the  party  must  proceed  in  debt  or 
covenant  where  the  contract  is  under  seal,  or  in  debt  or  scire 
facias  if  it  be  of  record,  even  though  the  debtor,  after  such  con- 
*  95  :'i^£(||^tract  were  made,  *expressly  promised  to  perform  it.(6)  But  if 
the  deed  be  only  executed  by  the  plaintiff  and  not  by  the  de- 
fendant, the  action  must  be  assumpsit  ;(c)  and  if  there  be  an 
agreement  by  deed  to  let  a  house  by  words  not  amounting  to 
an  actual  demise,  the  party  may  maintain  assumjisit  for  use  and 


CO  3  Bl.  Com.  r)47.     9  Co.  8S.  a.  {z)  3  Bl.  Com.  1.55. 

(7/)  1  H.  Rl.  .552.  (a)  1   H.  Bl.  249.   550.    Doug.  6. 

(w)  HiU-ilw.  486.     Com.  Dig.  Debt,  752. 

B.     2  Ld.  Uaj  m.  1040.     2  Saund.  62.  ((^)  1  Roll.  Abr.  11.  517.    «Cro.  Jac. 

b.                                                 '  506.  598.    Cowp.   129.     2  Stra.  1027". 

{x)  2  B.  k  P.   78.-  and  Chitty   on  Bull.  X.  P.  128.     2  T.  R.  105.     Hut- 
Bills,  2d  ed.  .Wo,  4.  ton,  34.     1   Vin.  Abr.  278.  pi.  20.     1 

(i/)  2  Sauud.  (>2.  b.  n.  5.  New  Rep.  lOS.     1  T.  R.  104,  5. 

(c)  3  Esp.  Rep.  42. 
.4 


Of  the  form  of  action.  95 

©ccupaiion  ;(rf)  and  where  on  the  separation  of  a  husband  and  ■'•  -isaumpsif. 
uifc,  he  covenanted  by  deed  with  a  trustee,  to  pay  an  allow- 
ance for  her  separate  maintenance,  but  made  default,  and  the 
trustee  provided  the  wife  with  necessaries,  it  was  decided  that 
he  might  support  assumfitit  on  the  common  law  obligation  ;(e) 
and  if  the  contract  under  seal  be  invalid,  and  there  be  any  evi- 
dence upon  which  an  implied  contract  can  be  raised,  assumfisii 
may  in  some  cases  be  supported  ;{f)  as  where  an  annuity  deed 
has  been  set  aside,  for  some  defect  in  the  memorial,  8cc.(5") 
and  where  a  feme  covert,  without  authority  from  her  husband, 
contracted  with  a  servant  by  deed,  the  service  having  been  per- 
formed, it  was  decided,  that  the  servant  might  maintain  assuni/i' 
dt  against  the  husband ;(/()  and  where  in  respect  of  a  nenv  con- 
iideration,  there  has  been  a  nenv  contract,  to  i)ay  a  debt,  or  per- 
form a  contract  under  seal,  assum^isit  may  be  supported  ;  as  on 
a  promise  to  an  assignee  of  a  bond,  to  pay  him  in  consideration 
of  forbearance;  {i)  or  on  a  promise  by  an  heir,  having  assets  by 
descent,  to  pay  the  debt  of  *his  ancestor  for  the  same  consider-  ^   96 

ation  ;(A')  or  by  the  debtor  himself,  in  respect  of  any  new  con- 
sideration ;(/)  and  though  it  has  been  decided  that  assumfisit 
cannot  be  supported  against  a  party,  on  his  undertaking  the 
debt  and  costs  recovered  against  himself,  in  consideration  that 
the  plaintiff  would  stay  execution  ;(m)  itisclear  that  such  action 
might  be  supported  on  a  similar  undertaking  to  pay  made  by  a 
third  person  ;(n)  so  between  partners,  who  have  by  deed  cove- 
nanted to  account  with  each  other,  and  to  pay  over  what  shall 
appear  to  be  due,  if  they  state  an  account,  and  one  expressly 
promise  to  pay  the  balance,  assianfisit  may  be  supported,  not- 


{d)  4  Esp.  Rep.  59.  Sir  T.  Rayin.  1'28.  1  Ventr.  159.  Com. 

(c)  2  New  Rep.  US.  Dig.  Action  Assumpsit,  B.  1. 

(,/•)  3  East,  333.     C  T.  R.  170.     6  (/)  Cro.  Car.  343.     Cro.  Eliz.    6r. 

East,  241.  12  Mod.   511.     1  Vin.  Abr.   272.     1 

(j)l<!.  ibid.  See  exceptions  iu  8  Roll.  Abr.   pi.  6.     Bac.  Abr.   8.  As- 

E;,<it,  231.  surapsit.  A. 

(A)  6  T.  R.  irfi.  (m)  Cowp,  128,  9.     Sed.  qu.     7  T 

0)  1   Saund.  210.  n.  1.     Hardr.  7i.  R.  421. 

^<)j.    1  East,  104.  1  Lev.  188.  8  T.  R.  (ii)  Cowp.  129.     Harilw.  71.  I  Lev. 

(/(.'}  1  Leon.  298      2  Sauud.    13"  b.  188. 


96  Of*  THE  FORiM  OF  ACTION. 

7.  Miiump^if.  withstanding-  the  deed  ;(o)  and  where  a  contract  under  seal  has 
afterwards  been  varied  in  the  terms  of  it  by  a  simple  contract, 
such  substituted  agreement  must  be  the  subject  of  an  action  of 
a-tawn/ifiit,  and  not  of  an  action  of  covenant  ;(/z) 

It  is  also  a  rule,  that  when  a  bond  or  other  security,  under 
seal  or  of  record,  has  been  accepted  in  satin/action  of  a  simple 
contract,  the  latter  is  )nerged  in  such  higher  security,  and  as- 
suni/isil  is  not  sustainable  ;((/)  unless  such  new  security  be  void 
on  account  of  usury  ;(/*)  or  under  the  annuity  act,  Sec.  in  which 
cases  the  party  may  proceed  on  the  original  simple  contract  if 
*  *valid;fs)  So  if  an  infant  give  a  bond  in  a  penalty  fornecessaries, 

the  bond  being  voidable,  the  creditor  may  proceed  in  assum/i- 
i,-it;(t)  and  if  after  a  secret  act  of  bankruptcy,  the  bankrupt  give 
a  bond  in  satisfaction  of  a  simple  contract  debt,  it  will  not  so  far 
extinguish  the  simple  contract  as  to  preclude  the  creditor  from 
petitioning  thereon  for  a  commission. (m)  And  the  acceptance 
by  a  landlord  of  a  bond  for  rent,  is  no  extinguishment,  because 
the  rent,  issuing  out  of  the  realty,  is  a  debt  of  a  higher  nature  ; 
though  a  judgment  obtained  on  the  bond  would  extinguish  the 
demand  for  rent.(7y)  The  taking  a  collateral  security  of  a  high- 
er nature,  whether  from  the  principal  or  a  surety,  does  not  pre  ' 
elude  the  creditor  from  suing  the  original  debtor  in  assumpsit 
on  the  first  contract  ;(-r)  though  judgment  may  have  been  ob- 
tained upon  such  collateral  security.(!/) 

It  was  also  a  branch  of  this  rule  that  assumfisit  could  not  be 
supported  for  rent,  &c.  issuing  out  of  real  property,  though  not 
reserved  by  deed,  unless  an  express  promise  to  pay  could  be 
proved  ;  the  demand,  in  the  technical  phrase,  savourhig-  of  the 
realty,  and  being  recoverable  by  higher  remedies  as  by  debt  or 
distress. (r)  The  statute  1 1  Geo.  II.  c.  19.  was  passed  to  reme- 

*   op  dy  the  *common  law  in  this  respect ;  since  which,  rent  due  on 

ro)2T.  R.483.  478.  (^O  B'lH-  N-  P-    182-     Stra.  J042. 

(p)  1  East,  630.     3  T.  R.  596.  (w)  Bull.  N.  P.  112.     6  Co.  44. 

(f;)  Cro.  Car.  415.    Bac.  Al.r.  Debt,  (j-)  2  Leon.    110.     6  T.  R.  176,  7, 

r;,  (w)  3Ea.=.t,  251. 

(?•)  I  Snunil.  295.  a.     Cro.  Eliz.  20.  [z)  1  Roll.  Abr.  7.     Cro.  Jae.  598. 

ft  East,  241.  414.     Cro.  Eliz.    242.     3   Lev.   1.50. 

(.t)  1  S.iunil.  295.  a.     Cro.  Eliz.  20.  261.     3   Woodd.  152,  3.  Freeni.  234, 

»5  East,  241.  Dong.  729. 

(0  Run.  N.  P.  182.     Co.   Lit.   172 
'  Cro.  E]ir.920. 


OF  THE  FORM  OF     ACTION  <J7 

a  parol  demise  may  be  recovered  by   action  of  as&um/isit  or  J-  ^l^'simpiuf. 
debt  ;(a)  and  indeed,  this  notion  seems  no  longer  to  prevail  in 
any  case. (A) 

Though  a  statute  may  in  some  respects  be  considered  as  a 
3necialty,(c)  yet  assum/isic  may  be  supported  for  money,  Sec.  ac- 
cruing due  under  the  provisions  thereof,  unless  another  remedy 
be  expressly  given,(t/)  and  an  order  of  an  inferior  court  of  jus- 
tice may  be  the  subject  of  this  action,  if  there  be  an  express 
agreement  to  observe  the  samc.(<?)  This  action  is  also  sustain- 
able upon  [he  judgment  of  a  foreign  court,  vhich  is  not  consi- 
dered as  a  debt  of  record  in  this  country,(/)  unless  in  the  case 
of  an  Irish  judgment  since  the  union.  (§■)  We  have  already 
seen,  that  this  action  is  not  sustainable  by  a  party  against  his 
copartner  to  recover  a  proportion  of  profits,  unless  the  ac- 
counts have  been  balanced  ;(/;)  though  in  the  case  of  a  partner- 
ship in  a  single  transaction,  exceptions  have  been  admitted  ;(?') 
nor  can  this  action  be  supported  against  a  corporation^  which 
cannot  contract  by  parol,  unless  in  the  case  of  promissory 
notes,/:  and  other  contracts  sanctioned  by  particular  legislative 
provisions  ;(/)  but  a  corporation  may  be  pUdntifls  in  this  form 
of  action.(7rt) 

*VVhere  there  has  been  an  express  contract,  the  party  in-  -^j   99 

jured  may  sustain  an  action  of  assumpsit.^  though  the  breach 
amount  to  a  trespass  ;(«)  but  unless  there  have  been  such  con- 
tract, or  the  law  will  under  the  circumstances  imply  a  contract, 
the  plaintiff  must  resort  to  another  form  of  action,  and,  there- 
fore, assumpsit  for  use  and  occupation  cannot  be  supported 
where  the  possession  is  adverse,  but  the  plaintiff  must  declare 
in  ejectment  or  trespass  ;(o')  and  though  we  have  seen,  that 
where  money  has  actually  been  receivedj*  the  plaintiff  may  in 


(a)ST.  R.  32r.     6   T.   15.    C2.     6  {h)  Ante,  25,  6,7.     2  T.  R.  4S3. 

East,  348.  4rs.     4  Kast,  144.     4  E«p.  Ktp.  182. 

(A)  Willes,  1  n .  1 1 S.  (0  Aute,  25,  6,  7.     Willes,  20'J.     8. 

(r)  1  Sauiul.  37,  8.  T.  K.  I4f>. 

{(1)  Bull.   N.  1'.   129.     Cov  p.   474.  (A-)  3  &c  4  Ann.  c.  9. 

Dmig.  10,  n.  2.  402.  407.    5T.  R.130.  (/)  G  Viu.  317.  pi.  49.     5  East,  239. 

Cora.  Dig.  tit.  Action  upon  Statute.  242. 

(<-)  2  IV  k  P.  484.  (m)  2  Lev.  252. 

(/)  1  Doug.  4.  .  \n)  1  AA'ils.  321.     3  Wils.  S54. 

\s)  3  East,  47 1>  (o)  1  T.  R.  386,  7.  378.    Ld.  Raym. 

1216.    Bac.  Abr.  Assumpsit,  A. 


99  OF  THE  FORM  OF  ACTION. 

I.  .^isjmpsii.  some  cases  waive  the  tort  or  trespass,  and  declare  in  assumfimt 
for  money  liad  and  received  ;./;)  yet  this  action  cannot  in  gene- 
ral be  supported  to  recover  back  money  paid  for  the  release  of 
cattle  distrained  damage  feasant,  but  the  party  must  replevy, 
or  proceed  by  action  of  trespass  or  trover  ;(§')  the  principle  of 
which  distinction  is  stated  by  Lord  Mansfield,  in  the  case  of 
Lindon  v.  Hooper Xr^ 

The  declaration  in  this  action  must  invariably  disclose  the 
consideration  upon  which  the  contract  was  founded  ;  the  con- 
tract itself,  whether  express  or  implied,  and  the  breach  there- 
of,(«)  and  damages  should  be  laid  sufficient  to  cover  the  real 
amount.  The  most  general  plea  is  non  assumpsit,  that  the  de- 
fendant did  not  undertake  and  promise,  as  alleged  by  the  plain- 

^  100  tiff,  and  under  *which  the  defendant  may  give  in  evidence  most 
matters  of  defence. 

The  Judgment  in  favour  of  the  plaintiff  is  that  he  recover  a 
specified  sum,  assessed  by  a  jury  or  on  reference  to  the  master, 
for  his  damages  which  he  hath  sustained  by  reason  of  the  de- 
fendant's non-performance  of  his  promises  and  undertakings, 
and  for  full  costs  of  suit,  to  which  the  plaintiff  is  in  all  cases 
entitled  in  this  action,  though  the  damages  recovered  be  under 
40.s.(0  unless  the  judge  certify  under  the  statute  43  AV/z.  c.  6. 
The  nature  of  the  declaration,  and  the  distinctions  between 
special  assumpsits  and  the  general  indebitatus  count,  and  the 
other  proceedings  in  this  action  will  be  more  fully  stated  here- 
after. 


11.   DEBT. 

Jl  Debt  This  action  is  so  called  because  it  is  in  legal  consideration  for 

the  recovery  of  a  debt,  eo  nomine  and  in  numero  ;  and  though 
damages  are  in  general  awarded  for  the  detention  of  the  debt, 
yet  in  most  instances  they  are  merely  nominal,  and  are  not,  as 


(/>)    Ante,    90,  1.       Loft    20S.—  (g)  Cowp.  415.     6  T.  R.  298. 

Cowp.  419.      6  T.  R.  695.      Bull.    N.  (?)  Cowp.  41  i. 

P.  133.     2B1.  Rep.  827.     3  Wils.  304.  (s)  B;ic.  Abr.  Assumpsit,  F- 

2  T.  R.  144.    C  T.  R.  G95,  ew.  (0  I'i'W's  Prac.  850. 


OF  THE  FORM  OF  ACTION.  100 

in  asswnjisit  and  covenant,  the  principal  object  of  the  suit,  and      II.  Debt. 
though  this  distinction  may  now  be  considered  as  merely  tech- 
nical, where  the  contract  on  which  the  action  is  founded  is  for 
the  payment  of  money,  yet  in  many  instances,  we  shall  find  it 
material  to  be  attended  toAzO 

Debt  is  a  more  extensive  remedy  for  the  recovery  *of  mo-  '■''^   101 

ney,  than  assumfiait  or  covenant,  for  it  lies  to  recover  money 
due  upon  legal  liubilities,(w)  or  upon  simple  contracts  express 
or  implied,(.r)  whether  verbal  or  written,  and  upon  contracts 
under  seal,(j/)  or  of  record,(z)  and  on  statutes  by  a  party 
grieved,  or  by  a  common  informer,  whenever  the  demand  is 
for  a  sum  certain,  or  is  capable  of  being  readily  reduced  to  a 
certainty  ;(a)  as  on  a  contract  to  pay  so  much  per  load  for 
wood,  the  quantity  of  which  was  not  then  ascertained  ;  or  on  a. 
quantum  meruit^  for  work,  or  to  pay  a  proportion  of  the  costs 
of  a  suit  expected  to  be  incurred, (A)  or  to  recover  the  treble 
value  of  tithes  not  set  out  according  to  the  statute. (c)  Rut  it 
is  not  suitable  when  the  demand  is  rather  for  unliquidated  da- 
mages than  for  money,(c/)  unless  the  performance  of  the  con- 
tract were  secured  by  a  penalty,  in  which  case,  debt  may  be 
supported  for  the  penalty,  and  the  real  demand  is  to  be  ascer- 
tained according  to  the  provisions  of  the  8  and  9  Wm.  III.  c. 
1 1 .  Debt  also  lies  in  the  detinet,  for  goods,  as  upon  a  con- 
tract to  deliver  a  quantity  of  malt,  which  action  differs  from 
that  of  detinue  in  respect  of  the  property  in  any  specific  goods 
not  being  necessarily  vested  in  the  plaintiff  at  the  time  the  ac- 
tion is  brought,  which  is  essential  in  detinue. (<?) 

*0n  simfile  contracts  and  legal  liabiliiies.,{f)  debt  lies  to  re-  *■    102 

cover  money  lent,  paid,  had  and  received,  and  due  on  an  ac- 


(?0    1  H.  Bl.  550.      Bull.    N.    P.  (6)  3  Lev.  429. 

ICr.     Cowp.  588.  (c)  Ld.  Kaym.  682.       1  Roll.  Abr. 

{~w)  Hob.  206.  598.  pi.  19. 

(.r)    Hob.  206.      Bull.   N.    P.    107.  {d)    Ante,    note   a.      Ld.    R.-jym 

Com.  Dig.  Debt,  A.  9.  1040.     2  Sauiid.  C2.  b. 

(!/)  Id.  ibid.  (e)  Dyer,  24.  b.      Com.  Dig.  Debt, 

(;)   Id.  ibid.  A.  5.    Bac.  Abi-.  Debt,  F.     3  Vvoodd 

(a)    Bull.  N.  P.  lOr.       3  Lev.  429.  103,  4. 

SirT.  Jones,  104.  Ld.  Ray m.  814.     3  (/)  Anto,  101 
Stra.  1089.    Doug.  6.    2  T.  R.  29. 

Vol.  I.  [    10   ] 


102  OF  THE  FORM  OF  ACTION. 

//.  Dtbt.  count  stated, (if)  for  interest  due  on  the  loan  or  forbearance  of 
money, 70  f<^''  work  and  labour,  and  a  ijuantu/n  meruii  there- 
on (/)  for  ftcs.(/r)  for  goods  sold,  and  a  quantum  meruit  t  here- 
on,(0  'iiid  for  use  and  occupation  of  houses  or  land,  &c.  on  a 
demise  not  under  seal,(7?2)  and  for  every  duty  created  by  com- 
n\o!i  law  or  custoni(?2)  as  on  a  bill  of  exchange,  by  the  payee 
against  the  drawer,  on  the  default  of  the  acceptor,  and  on  a 
promissory  note  by  the  payee  against  the  maker,  but  not  by  or 
aguinsi  any  other  collateral  party  ;(o)  and  for  tolls,  port  duties 
and  copyhold  fines,(//)  and  on  an  award  to  pay  money,  but  not 
if  it  were  to  perform  any  other  act,  unless  there  were  an  arbi- 
tration bond,  in  which  case  the  action  must  be  brought  there- 
on.(/)  It  lies  also  on  by-laws, (r)  for  fines  and  amerciaments(«) 
on  KnglLh  judgments  not  of  record,(/)  and  on  foreign  judg- 
ments.(^0 

Debt  lies  also  to  recover  money  due,  on  any  sfiecialty  or  con- 

*  103  trart  un<lcr  seal  to  pay  money,(x»)  *as  on  single  bonds,(7y)  on 
charter-parties, (.r)  on  policies  of  insurance  under  seal,(!/)  and 
on  bonds  conditioned  for  the  payment  of  money,  or  for  the  per- 
formance of  any  other  act  by  or  against  the  parties  thereto  and 
their  personal  representatives  ;(z)  and  against  the  heir  of  the 
obligor,  if  he  be  expressly  named  in  the  deed,  or  against  a  de- 
visee having  legal  assets  ;(a)  and  by  the  sheriff  or  his  assignee, 
on  baiI-bonds,(6)  and  replevin  bonds  ;(c)  on   leases  for  rent  or 


(^)  Com.  Di-.  til.  Debt,  A.    1  Roll.  (s)    Ci-o.  Eliz.   581.      Bull.  N.  P. 

Abr.  5(1.3.  1)1.  25!     Hob.  207.  1^7       1  11.  Bl.  162.      T.  Hardw.  116. 

(A)  5  T.  R.  55,3.  Hob.  206. 

(/)  Com.  Dis?.  Debt,  B.  (t)  1  Saiind.  92.  n.  2. 

\k)  IJac.    Abr.   Debt,    A.     1  Roll.  (f/)  3  East,  221.     Doug.  1. 

Abr.  598.     Com.  Dig.  Pleader,  2.  W.  {v)  2  Stra.  1089. 

Ji.  (w)    Com.  Dig.  tit.  Debt,  A.  4.— 

(0  Fortesc.  197.     2  T.  R.  28.  Stra.  1089.     1  T.  R.  40. 

(w)  6  T.  R.  62.      6  East,  318.  and  {x)   Stra.  1089. 

this  on  account  of  bail  in  error,    is  {y)  Marshall   ou  Insurance,  596.— 

preferable  to  assumpsit.     Tidd,  1077.  6  G.  I.    c.  18.    s.4. 

(ji)    Com.   Dig.  tit.  Debt,  A.  9.—  (.-r)  Com.  Dig.   tit.  Debt,    A.  4.— 

Hob.  206.  Post,  vol.  2.  151  to  159. 

(o)  2  B.  k  P.  "S.     Chitty  on  Bills,  (a)   Bac.   Abr.   tit.   Heir.     7  East, 

2d  edit.  303,  4.    2  Selwyn,  N.  P.  469.  128.     Post,  vol.  2. 159  to  162. 

Ante,  94.  (6)  4  k  5  Ann.  c.  16.    Post,  vol.  2. 

(/»)  Com.  Dig.  tit.  Debt,  A.  9.  162  to  168. 

(y)    2  Saund.  62.  n.  5.      Buir.  278.  (c)     11  G.H.  c.  19.      Post,  vol.  2 

Salk.  72.     Ld.  Raym.  715.     Stra.  923.  168  to  173. 

(r)  1  B.kP.  98. 


OF  THE  FORM  OF  ACTION.  103 

penalties,  as  for  ploughing  up  meadow,    &c.(f/)    on   annuity      II.  Debt 
deeds, (f)  for  rent  charges  against  the  pernor  of  the  profits  ol 
the  estate, (y)  and  on  mortgage  deeds. 

This  action  also  lies  on  records^  as  upon  the  judgment  of  a 
superior  or  inferior  court  of  recoid,(^)  either  generally,  or 
against  an  executor  or  administrator  suggesting  a  devastavit  ;(A) 
and  at  common  law  debt  was  the  only  remedy  after  a  year  and  a 
day  had  elapsed  from  the  time  when  the  judgment  was  recover- 
ed, though  scire  facias  is  now  sustcinable  ;(?')  where,  however, 
the  defendant  has  been  in  execution  *on  the  judgment,  and  ^  104 
discharged  with  the  plainiiflT's  concurrence,  no  action  can  be 
supported  on  the  judgment  •,{k)  and  where  tl)c  defendant  has 
been  discharged  out  of  custody  under  the  Lords*  act,  debt  is 
not  sustainable  ;(/)  and  the  action  upon  a  judgment  has  become 
less  frequent  since  the  statute  43  Geo.  Hi.  c.  46.  s.  4.  which 
precludes  the  plaintiff  from  recovering  costs  in  an  action  on  a 
judgment,  unless  the  court,  or  one  of  the  judges  thereof,  shall 
otherwise  direct.  Debt  is  sometimes  biought  upon  a  recog- 
nisance of  bail,('«)  but  the  remedy  thereon  is  more  frequently 
by  scire  faciasy  because  in  the  latter  the  proceeding  is  more 
expeditious,  and  the  bail  have  less  opportunity  of  discliarging 
themselves  by  rendering  their  principal. (n)  So  debt  lies  upon 
a  statute  vierchant^  though  not  upon  a  statute  staple,  because 
the  seal  of  the  party  is  not  affixed  to  the  latter  ;  but  it  lies  on 
a  recognisance  in  the  nature  of  a  statute  sta/ile,  to  which  the 
seal  of  the  conusor  is  affixed. (o)  It  lies  also  on  a  sheriff's  re- 
turn oi  Jicri  feci,  which  is  in  the  nature  of  a  record  (/;) 


{il)    Com.  Dig.  tit.  Debt,  A.  5.  R.  (/;)   I  Sauii.l.   '2lG.  218,  19.  n.  7,  S. 

3B1.  Com.   '231.       1  New   liep.    lOi.  0  Mod.  .306.     ,5  East,  'i. 

109.  (0  Gill).  Dcht,  ?><Ji,  4. 

(c)  Post,  vol.2.  ir5.  (^•)  4  IJiur.  2482.     7  T.  P.  4'20. 

(/)    Po^.t,  vol.  2.  174.      Cro.  Eliz.  (/)  3'2  Geo.  II.  c.  '2S.   s.  '20. 

2f.8.  895.      Com.  Disc.  Debt,  A.  5.     1  {m)     Vol.    2.    177   to    ISl.        GilS 

Saund.  28'2.  n.  1.  27G.       Lil.  Holt  held  De'.jt,  39.5. 

tliut  coveiiaiit  would   not   lie   against  («)  TiUd,  3(1  edit.  2.>7. 

the  assignee  of  the  grantor.      1  Ld.  (o)  2  Saund.  09,  70.  in  notis.    Com. 

Haym.  322.     t  Sulk.  198.  Dig.  Debt,  A.  3. 

C?)  (;ilb.  Debt,  391,  -2.     Salk.  209.  (/;)    2.  Sannd.    3i3.      2  Show.    79. 

Com.  Dig.  Debt.  A.  2.       Schvj-n,  N.  IL.b.  20G.     T idd,  9.>.%  4. 

^  5;j 


104  OF  THE  FORM  OF  ACTION. 

Jl.  Debt.  Debt  is  frequently  the  remedy  on  statutes  either  at  the  suit  of 

the  party  grieved,  or  of  a  common  informer.^ry)  In  some  cases 
it  is  given  lo  the  /mrty  gfieved,  by  the  express  words  of  a  star 
*  105  iutei  as  for  an  escape  out  of  execution, (r)  *or  against  a  tenant 
for  double  value  for  not  quitting  in  pursuance  of  a  notice  to 
quit  given  him  by  his  landlord, (.s)  and  if  a  statute  prohibit  the 
doing  an  act  under  a  penalty  or  forfeiture  to  be  paid  to  a  parly 
grieved,  and  do  not  prescribe  any  mode  of  recovery,  it  may  be 
recovered  in  this  form  of  action  ;{t)  as  treble  the  value  of  tithes 
not  duly  set  forth. (w)  Where  a  penal  statute  expressly  gives 
the  whole  or  a  part  of  a  penalty  to  a  connnon  informer.,  and  en- 
ables him  generally  to  sue  for  the  same,  debt  is  sustainable, (x^) 
and  he  needs  not  declare  (]ui  tarn  unless  where  a  penalty  is 
given  for  a  contempt  •,{%v)  but  if  there  be  no  express  provision 
enabling  an  informer  to  sue,  debt  cannot  be  supported  in  his 
name  for  the  recovery  of  the  penalty. (x) 

In  some  cases  this  action  is  the  Jieculiar  remedy,  as  against  a 
lessee  for  an  apportionment  of  rent,  where  he  has  been  evicted 
from  a  part  of  the  premises  by  a  third  person,  though  cove- 
nant is  in  such  case  sustainable  against  the  assignee  of  the  les- 
see.(y)  It  is  also  the  only  remedy  against  a  devisee  of  land, 
for  a  breach  of  covenant  by  the  devisor. (z) 

Debt  however,  is  not  in  any  case  sustainable  unless  the  de- 
mand be  for  a  sum  certain,  or  for  a  pecuniary  demand  which 

...    ,  ,,,.         can  readily  be  reduced  to  a  certainly,  *as  in  the  instances  before 
■■'^'  100  \     .  .   .  , , 

enumerated  '^c:)  nor  can  it  m  general  be  svipportcd  on  a  sim- 
ple contract  against  an  executor  ;  (unless  in  the  court  of  ex- 
chcquer,((?')  or  in  those  cases  in  which  the  testator,  if  living, 
could  not  have  v.'agcd  his  law  ;)(f )  though  if  the  executor  plead, 
and  do  not  demur,  he  cannot  afterwards  object  to  the  form  of 


(<7)  Com.  Dig.  Action  on  Statute,  E.  O'l')  W- ibkK      2  Siiunil.   37-i.  n.  1, 

Bac.  Abr.  Debt,  A.  2.     1  Satind.  1.30.  n.  1. 

()•)  1  Rich.  II.  c.  12.    1  Saund.  3-J,  (.r)  5  East,  31,3.  yi5.     Stia.  828. 

35.39.218.     Com.  Dig.  Debt,  A.  (fr)    2  East,  579,  580. 

(s)     4G.  II.    e.  28.    s.  1.       1  Xcw  (r)rEast,  12. 

Hep.  174.     Post,  vol.2.  1S3.  00  Ante,  101. 

(0  1  Roll.  Abr.  598.  pi.  18,  19.  {b)  1  New  Rop.  293.      Plowd.  182- 

111)    Id.  ibid.      1  Ld.  Raym.  682.—  9  Co.  86.  b.     1  Sauud.  68.  216.  286.     2 

Post,  vol.  2.  185.  Saund.  74.  n.  2.     Ante,  93. 

(r)    Com.  Dig.    Action  Debt,    E.  (c)    1  Saund.  216.  a.  n.  4.      9  Co 

1,  2.  sr.  b. 


OF  THE  FORM  OF  ACTION.  lOG 

uction.(</)  Nor  can  debt  be  supported  for  money  payable  by  //.  Beln. 
instalments,  till  the  whole  debt  is  due  ;(<?)  though  for  rent  pay- 
able quarterly,  or  otherwise,  or  for  an  annuity,  or  on  a  stipula- 
tion to  pay  10/.  on  one  day  and  10/.  on  another,  debt  lies  on 
each  default ;(/)  and  even  where  one  sum  is  payable  by  instal- 
ments, if  the  payment  be  secured  by  a  penalty,  debt  is  sustain- 
able for  such  penalty  on  any  default  at  common  law  as  well  as 
on  the  statute. (5-)  V/hen  the  landlord  has  accepted  rent  from 
the  assi£>;nee  of  a  lessee,  he  cannot  sustain  debt  against  the  les- 
see or  his  personal  representative,  but  must  proceed  by  action 
of  covenant  on  the  express  contract ;(/{)  and  debt  is  not  sustain- 
able on  a  collateral  contract,  as  on  a  promise  to  pay  the  debt  of 
another  in  consideration  of  forbearance,  8cc.O)  nor  against  the 
indorser  of  a  *bill  or  note,  or  by  an  indorsee  against  the  ac-  ^  jq~ 
ceptDr.UO 

Foi*merIy,  when  the  trial  by  wager  of  law  was  in  practice, 
the  action  of  as&umfi&it  was  preferable  to  that  of  debt  on  simple 
contract ;(/)  but  although  this  mode  of  defence  and  trial  is  still 
in  general  in  force  w'hen  the  debt  is  due  on  simple  contract,(?«) 
and  it  may  be  adopted ;  (except  in  the  exchequer  or  when  the 
creditor  has  become  so  by  legal  necessity,  as  in  the  case  of  a 
debt  to  a  gaoler  or  innkeeper,  8tc.  for  fees  ;)(n)  yet  it  is  now  so 
much  disused  that  debt  has  of  late  become  very  frequent,  and 
is  preferable  in  some  respects  to  the  action  of  assuni/isit,  the 
judgment  therein  being  final  in  the  first  instance,  and  not  in- 
terlocutory as  in  assumfisit,  and  the  defendant  being  in  some 
•cases  compellable  to  find  bail  in  error,  though  the  judgment 
be  by  nii  elicit  or  on  demurrer.(o)  It  was  once  thought  that  in 
an  action  of  debt  the  plaintiff  could  not  in  any  case  recover  less 


{(l)  Plowd.18'2.  r,(lG.  181,  2.       Bac.  Abr.  Debt,  D.— 

(e)  1  H.  Bl.  554.       2  Sound.  303.  n.  Com.  Dig.  Debt, 

e.     3  Co.  22.  a.      Selwv  n,   N.  P.  471,  (/)  Hardr.  486.       Com.  Dig.  Debt, 

^72.    Ante,  93.  B.    2  B.  k  P.  83.    Cro.  Cai".  107.  IGj- 

(/)    Id.  ibid.       Owen,  82.      Bac.  1  Salk.  23.     Ante,  94. 

Abr.  Debt,  A.  C.  (k)  2  B.  &  P.  78.     Ante,  04. 

(5-)  8  &c  9  W.  III.  c.  11.  Bac.  AW.  (?)  3B!.  Com.  347. 

Debt,    B.      1  Wils.  80.      Cora.   Dig.  \m)  Id.  ibid.     1  New  Rep.  2r43. 

Action,  F.  (h)    3  Bl.  Com.  345,  6.      1  Saund 

{li)  Ante,  35,  6.     1  Sannd.  241,  2.  216.  a.  n.  1.     9  Co.  87.  b. 

n.  5.       2  Saund.  297.  n.  1.  303.   n.  5.  (o)  3  Jac.  I.  c.  8.    3  East,  359. 


107  OF  THE  FORM  OF  ACTION. 

//.  Lebt.  than  the  sum  demanded ;(//)  which  notion  greatly  discouraged 
the  action  of  debt  on  simple  contract,  because -if  the  plaintiff 
could  not,  upon  the  indebitatus  or  (juantum  meruit  count,  prove 
that  he  was  entitled  to  recover  the  precise  sum  alleged  to  be 
due,  he  was  nonsuited.  It  is,  however,  now  comple'ely  bettled, 
that  the  plaintiff  may.  in  deln  on  simple  contract,  prove  and 
recover  less  than  the  sum  stated  to  be  due  in  his  declaration  ',{q') 

^    108  *uniess  there  be  a  variance  in  the  description  of  a  written  in- 

strument, or  deed  ;(r)  for  the  difference  is,  that  where  debt 
is  brought  upon  a  covenant  to  pny  a  sum  certain,  a  variance  in 
the  statement  of  the  sum  mentioned  in  the  deed  will  vitiate  ; 
but  where  the  deed  relates  to  the  matter  of  fact,  there,  though 
the  plaintiff  demand  more  than  is  due,  he  may  enter  a  remit- 
titur.{s) 

The  declaration  in  this  action,  if  on  sim/ile  contract  must 
shew  the  consideration  on  which  the  contract  was  founded, 
precisely  as  in  assumjisit  ;{t)  iind  should  state  either  a  legal 
liability,  or  an  express  agreement  ;  though  not  i.\  promise  to  pay 
the  debt.(u)  But  on  s/ircialties,  or  records,  no  consideration 
needs  be  shewn,  unless  where  the  performance  of  the  consider- 
ation constitutes  a  condition  precedent,  when  performance  of 
such  consideration  must  be  averred  ;  and  where  the  action  is 
founded  on  a  deed,  it  must  be  declared  upon,  except  in  the  in- 
stance of  debt  for  rent.(w)  The  JiL  a  of  general  haue  to  debt 
on  simple  contracts,  or  on  statutes,  or  where  the  deed  is  only 
matter  of  inducement,  is  ;///  debet  j  but  in  general,  in  debt  on 
specialty,  the  plea  denying  the  existence  of  the  contract  is  Jion 
est  fact7im  ;{x)  and  to  debt  on  record,  nul  tiel  record;  most 
other  matters  must  be  specially  pleaded.  The  judgmc7it  in 
the  plaintiff's  favour,  which  at  common  law  is  final,  in  all 
cases   is,  that   the   plaintiff  recover  his  debt,  and  in  general, 

*    109         nominal  damages,  *for  the  detention  thereof;  and  in  cases  un- 
der the   R  and  9  VVm.  III.    c.   11.  it  is  also  awarded,  that  the 


(//)  3  BI.  Com.  155.      2  Sir  W.  Bl.  (.j)    Per  Holt,  C.  J.     2L(1.  Raym. 

1221.     2T.  R.  28.     Bull.  N.  P.  171.  Slfi. 

{q)  I  H.  Bl.  550.  249.     12  Mod.  72.  (0  Post,  vol.  2. 142  to  145. 

Doug.  6.     Sehvyn,  N.  P.  470.  {n)  2  T.  R.  28.  30. 

(j)  1.<1.  Rsym.  8lQ.      1  H.  Bl.  251.  (-.y)  1  New  Rep.  lOi.     Post,  vol.  2. 

I  Saund.  288.  u.  1.  17.5,  4. 

(x)  2  La.  Raym.  1509.    Id  itid- 


OF  THE  FORM  OF  ACTION.  109 

plaintiff  have  execution  for  the  damages  sustained  by  the  ^^  ^<'^^- 
breach  of  a  bond,  conditioned  for  the  performance  of  covenants ; 
and  the  plaintiff,  unless  in  some  penal  and  other  particular  ac- 
tions, is  entitled  to  full  costs  of  suit,  aUhough  the  damages  re- 
covered be  under  40s.(y)  unless  the  judge  certiiy  under  the  sta- 
tute of  Elizabeth.  Where  the  action  is  for  rent,  or  on  a  mo- 
ney bond,  or  on  a  written  contract,  for  a  sum  certain,  and  the 
defendant  suffers  judgment  by  default,  he  must  in  general  find 
bail  in  error  ;(r)  which  frequently  renders  this  action  preferable 
to  that  of  assumjiait  or  covenant. 


III.    COVEXA.XT. 

The  rules  respecting  this  action  are  few  and  simple  ;  it  is  a  JII. 
remedy  calculated  for  the  recovery  of  damages  for  the  breach 
of  a  cQvniant  or  contract  under  seal  ;{a)  whether  such  covenant 
be  contained  in  a  deed  poll,  or  indenture  ;(6)  or  be  express  or 
implied  by  law  from  the  terms  of  the  deed  ;(f )  or  for  the  per- 
formance of  something  mywrwro,  or  that  something  has  been 
done  ;Crf)  and  in  some  cases,  though  it  relate  *to  matter  in  ^  110 
firesenti,  as  that  the  covenantor  hath  good  title  :(o)  though  it  is 
said,  that  in  general  covenant  will  not  lie  on  a  contract  in  pre- 
sently as  on  a  covenant  to  stand  seised,  or  that  a  certain  horse 
shall  henceforth  be  the  property  of  another. (//)  It  would  be 
foreign  to  tbe  present  inquiry,  relating  iiierely  to  the  applica- 
tion of  the  remedy,  to  inquire  into  the  nature  and  description 
of  the  different  covenants,  which  are  to  be  found  in  the  works 
relerred  to  in  the  note.(.y) 


(i/)  Tidd,  3(1  edit.  880.  {d)    Com.   Dig.  Covenant,  A.  1.— 

(z)  Tidd,  1077  to  1079.  Plowd.  308. 

(a)    2L<I.Raym.  LSae.     F.  N.  B.  (o)    3  Woodd.  85,  86.      2  B.  k  P 

145.  Cro.  Jac.  506.    Com.  Dig.  Plead-  13.     2  Shiuu].  181.  b. 

er,  2.  v.  2.     Covenant,  A.  1.  (/>)    Plowd.    308.     Finch.  49.  b.— 

(A)  1  Roll.  Abr.  017.  pi.  40.     Com.  Com.   Dig.   Covenant,    A.   1.       Vin. 

Dig.  Covenant,    A.  1.      Post,  HI.  as  Abr.  Covenant,  A.  pi.  6.  G.  3. 

^j  bonds.  (9)    Sel«  yn,    N.  P.  tit  Covenant- 

(c)    Com.  Dig.  Covenant.  A   2.  Com.    Dig.  Covenant,   A.   2,  3,4.— 

Bac.  Abr.  Covenant. 


110  OF  THE  FORM  OF  ACTION. 

Jil-  Covenant  is  the  usual  remedy  upon  indentures  of  apprentice- 

ship, against  the  master  for  not  instructing  his  apprentic  e,  or 
against  the  party  who  covenanted  for  the  due  service  of  such 
apprentice,  but  it  will  not  lie  against  an  infant  apprentice,  or 
where  the  binding  was  for  less  than  seven  years.(r)  It  lies  also 
on  articles  of  agreement  under  seal,  or  deeds  of  separate 
maintenance  ;(*)  and  on  covenants  in  deeds  of  conveyance,  &c. 
for  good  title,  8cc,i7)  on  charter-parties  of  affreightment ;(«) 
on  policies  of  insurance  under  seal  against  fire,  StcXx)  and  on  an- 
nuity and  mortgage  deeds  ;  though  debt  in  the  last  instances, 
is  in  general  preferable  when  the  demand  is  for  money .(y)  It 
*^  1 1 1  ^^  ^'^*^  ^'^^  usual  remedy  on  leases  at  the  suit  of  the  *lessee, 
his  executor  or  assignee  against  the  lessor  fer  the  breach  of  a 
covenant  for  quiet  enjoyment,  &c.  and  by  the  lessor,  Sec.  against 
the  lessee,  &c.  for  non-payment  of  rent,  not  repairing.  Sec  and 
covenant  appears  in  general  to  be  a  concurrent  remedy  with 
debt,  for  the  recovery  of  any  money  demand,  where  there  is 
an  express  or  implied  contract  contained  in  the  deed  ;(r)  and  it 
has  even  been  holden  that  an  action  of  covenant  is  sustainable 
on  a  bond,  though  debt  is  now  the  usual  remedy. («) 

This  action  most  frequently  occurs  on  leases.  At  common 
law,  upon  the  death  of  a  lessor  seised  in  fee,  his  heir  might  sue 
for  a  subse(|uent  breach  of  a  covenant  running  with  the  land, 
although  not  named  in  the  lease  ;{b)  and  the  action  oi  debt  lay 
for  the  assignee  of  the  reversion  for  roit^  at  common  law  ;(c) 
but  no  persons  could  fi)rmerly  support  an  action  of  covenant^ 
or  take  advantage  of  a-ny  covenant  or  condition,  except  such 
as  were  parties  or  privies  thereto ;  and  of  course  no  grantee 
or  assignee  of  any  reversion  or  rent,  to  remedy  which  the 
statute  32  Hen.  VHI.  c.  34.  gives  the  assignee  of  a  re- 
version the  same  remedies  against  the  lessee,  or  his  assignee, 
or    their    personal   representatives   upon   covenants    running 


(r)    Post,    vol.  e.  233.      Cro.  Car.  (:)  Com.  Dig.  Action,  M.  4. 

iri).  (a)    3  Lev.  119.      Hard.    I'S.      8 

(.S-)  2  New  Rep.  148.  Mod.  190.      Doug.   518.      Com.  Dig. 

(J)    2Saund.  17.^.    irS.   181.     2  B.  AcUon,  I.   M.  4.  Covenant,    A.  2. — 

k  P.  13.     3  East,  401.  Via.  Abr.  Coveuasit,  B.  pi.  10. 

.  ((/)  3  East,  233.     1  Xew  Rep.  104.  {b)  2  Lev.  92.  and  see  the  conclu- 

(.v)  6  T.  R.  710.      2  Mars.  601.  a.  diug  words  of  the  32  Hen.  VOL  c.  34- 

a.  and  G  G.  L  c.  18.  s:  1. 

{ij)  Post,  vol.  2.  175.  (c)  1  Saund.  241.  c. 


OF  THE  FORM  OF  ACTION.  HI 

kith  the  land,  as  the  lessor  or  his  heir,  or  their  successor,  had  at      ^  ^I^- 

Covenant. 
Common  law ;  and  on  the   other  hand,  such  assignee  is  liable 

by  the  statute  to  an  action  for  a  breach  of  covenant  i"unning 

*with  the  land  as  the  lessor.  Sec.  was  at  common  law.(c/)  *    112 

Where  the  demand  is  for  rent  or  any  other  liquidated  sum, 
the  lessor  has  an  election  to  proceed  in  debt  or  covenant  against 
the  lessee^  unless  he  have  accepted  the  assignee  as  his  tenant, 
or  the  lessee  have  become  bankrupt,  in  which  case  the  action  of 
debt  is  not  in  general  sustainable  ;  and  the  lessor  CaU  only  sue  the 
lessee  after  such  assignment  in  covenant,  and  then  only  upon 
an  exfiress  covenant,  and  not  upon  a  covenant  in  law  ;(e)  and 
on  the  other  hand,  as  a  personal  contract  cannot  be  apportioned, 
therefore,  where  there  has  been  an  eviction  fi'oni  a  part  of  the 
land,  even  by  a  stranger,  the  lessee  cannot  be  sued  in  covenant, 
but  only  in  debt,  though  a  distress  may  be  supported.(/) 
With  respect  to  the  asszgJiee  of  the  lessee,  the  lessor  may  sup-  ^ 

port  debt  or  covenant  at  common  law  •,(g)  and  an  assignee  of  a 
part  of  the  premises  may  be  sued  in  covenant  ■,(h')  and  it  lies 
for  an  apportionment  against  the  assignee  of  the  lessee,  in  case 
of  a  partial  eviction  by  a  stranger,  though  we  have  seen  that  it 
is  not  in  such  case  sustainable  against  the  lessee. (/) 

From  the  preceding  observations,  it  appears  that  the  action  of 
covenant  being  for  the  recovery  of  damages  for  the  non-perform- 
ance of  a  *contract  under  seal,  differs  very  materially  from  the  ^  i  i  o 
actions  of  assu?n/isil  and  debt;  for  assu?nfi&it,  though  for  the  re- 
covery of  damages,  is  not  in  general  sustainable  where  the  contract 
was  originally  under  seal,  or  where  a  deed  has  been  taken  in  sa- 
tisfaction ;{k)  and  though  debt  is  sustainable  upon  a  simple  con- 
ti'act,  a  specialty,  a  record,  or  a  statute,  yet  it  lies  only  for  the 
recovery  of  a  sum  of  money  in  numero,  and  not  where  the  da- 
mages are  unliquidated  and  incapable  of  beuig  reduced  by  aver- 


(<i)  3  Bl.  Com.  158.     See   tlie  ob-  (/)  2  East,  375. 

servalions  on  the  statute,  Bac.  Abr.  (j')  1  SaUruI.   241 .  c.     3  Co.  22.  I? 

CovL-nant,   E.    5.      Vin.   Abj\   Cove-  (A)   Sir   W.  Joaes,  245.     2    Ea?t. 

nant,  K.  3.     Ante,  c.  1.  as  to  the  par-  580. 

ties  to  sue  and  be  sued.  (7)  2  East,    75. 

(e)  Ante,  36.     1   Saund.  241.  n.  5.  (i)  Ante,  94  to  90 
1  T.  R.  92.     Cro.  Jac.   52.".     Cullen, 
392,  3. 

Vol.  T  rill 


US  OF  THE  FORM  OF  ACTION. 

JJf-  incnt  to  a  ccitLiiutv  ;(0  and  thoueh,  Avhere  the  object  of  the  ac 

Coveimnl.         .  -  '.  _  . 

tion  of  covenant  is  the  recovery  of  a  money  demand,  the  dxs- 

thiction  between  the  terms,  damages  and   mortey  in  niunero^ 

may  not  on  first  view  appear  substantial,  yet  vvc  shall  find  it 

material  to  be  attended  to.(7H) 

Covenant  is  the  peculiai*  remedy  for  the  non-performance  of 
a  contract  under  seal,  where  the  damages  are  unliquidated,  and 
depend  in  amount  on  the  opinion  of  a  juiy,  in  which  case  wc 
liuve  seen  that  neither  debt  nor  assu/n/i,si(  can  be  supported  ;(n) 
and  it  is  the  proper  remedy  where  an  entire  sum  is  by  deed  stipu- 
lated to  be  paid  by  instalments,  and  the  whole  is  not  due,  nor  the 
payment  secured  by  a  penalty  ;(o)  and  it  is  frequently  more  ad- 
visable to  proceed  in  covenant,  on  a  lease,  Sec.  for  general  da- 
mages, than  to  declare  in  debt  for  a  penalty,  securing  the  pcr- 
^  1 1  i  formance  *of  a  covenant,  because,  if  the  party  elect  to  proceed 
for  the  penalty,  he  is  precluded  from  afterwards  suing  for  gene- 
ral damages;  and  he  cannot  in  case  of  further  breaches  recover 
more  than  the  amount  of  the  penalty,  and  in  many  cases  before 
he  can  issue  execuiion,  he  must  proceed  under  the  statute  8 
and  9  JT.  III.  c.  11.  whereas  if  he  proceed  in  covenant,  for 
every  repeated  In'cach,  he  may  ultimately  recover  damages 
beyond  the  amount  of  the  penalty  ;(//)  and  where  rent  is  due 
upon  a  lease,  and  there  has  also  been  another  breach,  as  for  not 
repairing,  for  which  the  plaintiff'  claims  unlic^uidated  damages, 
covenant  is  preferable  to  debt,  because,  in  the  former,  damages 
for  the  whole  demand  may  be  recovered.  So  where  the 
grantor  of  an  annuity  has  become  a  bankrupt,  or  an  insolvent 
debtor,  the  grantee  should  proceed  for  arrears  which  became 
due  after  the  insolvency,  by  action  of  covenant  on  the  annuity 
deed,  and  not  by  action  of  debt  on  the  annuity  bond,  to  which 
the  bankruptcy  and  certificate  would  frequently  be  a  bar.(7) 

On  the  other  hand,  covenant  cannot  in  general  be  supported 
unless  the  contract  were  under  seal,  and  when  it  is  by  parol. 


(/)  Ante,  100,  1.    HuH.X.  p.  107.  (o)  Ante,  100.    Com.  Dig.  Action. 

(w)  Ante,  100.     Rien  iu  airerc  is  F. 

:i  good  pica  in  debt  for  i-eut,  but  not  (/j)  Burr.  1551.  1087.     Ld.  Rayin 

ill  covenant,  because  the  latter  action  SI4.     Doug.  9". 

is  for  damages.      Cowp.  588,  <).  (q)  Cidlen,  92.  94.  392,     Douj.  97 

(ii)  Ante,  9i  to  101. 105.  ::  East,  151 


OF  THE  F0R:M  of  ACTION.  114 

the  plaintiff  must  proceed  by  action  of  asauwp&u,  Scc.(r)  ua-      (jJJ^lum, 
less  by  special  custom  in   London  and  some  other  pkices  ;(s) 
or  ai^ainst  the  lessee  or  patentee  of  the  crown,  *\vhen  covenant  *    ]  15 

may  be  supported,  although  he  did  not  seal  any  counterpart  ol 
the  lease,  it  being  matter  of  record,  and  the  lessee's  acceptance 
of  the  demise  being  in  such  case  as  obligatory  as  an  express 
covenant ;(/)  so  if  a  lease  be  made  to  A  and  B,  and  A  only 
execute  it,  but  B  agree  thereto,  he  may  be  sued  jointly  willi 
.'/upon  a  covenant  for  rent  running  with  the  land.(w)  And  tliis 
action  may  be  supported,  although  the  covenantee  did  not  sign 
the  indenture  in  which  he  was  named  a  party  •■,^iu)  and,  we  have 
seen  that  in  the  case  of  a  deed  poll,  a  stranger  to  it  may  sue  on 
a  covenant  therein,  to  pay  him  a  sum  of  money,  though  it  is 
otherwise  in  the  case  of  a  deed  inter  partes. {x)  Where  a  con- 
tract under  seal,  has  afterwards  been  varied  in  the  terms  of  it 
by  a  subsequent  parol  contract,  such  substituted  agreement  must 
be  the  subject  of  an  action  of  nssmnpsit,  and  not  of  covenant :(!/) 
and  it  has  been  holdcn,  that  covenant  cannot  be  s\ipportcd 
against  the  assignee  of  the  grantor  of  a  rent  charge,  though 
debt  is  sustainable  against  the  pernor  of  the  profits. (r)  la 
some  cases  where  the  breach  of  a  covenant  is  jnhfcasance,  the 
party  has  an  election  to  proceed  by  action  of  covenant,  or  by 
action  on  the  case  for  the  tort,  as  against  a  lessee,  either  du- 
ring his  term,  or  afterwards,  for  waste. (o) 

*The  declaration  in  this  action  must  state  that  the  contract 
was  under  seal  ;(/^)  and  should  usually  make  a  profcrt  thereof, 
or  shew  some  excuse  for  the  omission  ;(c)  it  is  not  necessary 
to  state  the  consideration  of  the  defendant's  covenant,  unless 
the  performance  of  it  constituted  a  condition  precedent,  when 


(r)  Ld.  Kaym.  15.30.     Cora.  Disr.  (w)   Lutw.  305.     Com.  Di;,'.  Cove- 

iMcjuIcr,  2.  V.    2.    Covenant,   A.   1.  uaiu,  A.  I. 

l-'itz.  N.  B.  G.  (.r)    Com.   Dii;.    Covinuiit,   A.    1. 

(*)  W.  ibid.     Cora.   Dig.   London,  Ante,  -i. 

N.  1.  lit.  Covenant,  A.    Vin.  Abr.  Co-  (r)   Ante,  90.     1   Rust,  030.     3  T 

vcnaut,  A.  R.  590. 

(«)  Cro.  Jac.  399.  5-21.     Com.   Di^-.  (:)  i  Salk.  198.     I  Ld.  Uayra.  32-2. 

Covenant,   A.    I.      Vin.  Abr.    Cove-  Ant<;,  103. 

liant,  B.  1)1.  1.  ((/)  2  151.  Rep.  1111.  Si8. 

(m)  Co.  Lit.    251.  a.     2  Rol!,  Abr.  {b)  Ante,  109.     2  Ld.  Raym.  153G. 

■C3.     Com.  Dig.  Covenant,  A   1.  Com.  Di-.  Pleader,  2   \.  2. 

((■)  .rr.  K.  151. 


116 


IIG  OF  THE  FORM  OF  ACTION. 

111.  such  performance  must  be  averred ;  and  only  so  much  of  the 

Covenaui.        111  ■       1  i  1  r      ,        •  .   .         ■ 

clcefl  and  covenant  should  be  set  forth  as  is  essential  to  the  cause 

of  action,  and  each  may  be  stated  according  to  tlie  legal  effect, 
though  it  is  more  usual  to  declare  in  the  words  of  the  deed  ; 
and  the  breach  also  may  be  in  the  negative  of  the  covenant, 
generally,  or  according  to  the  legal  effect,  and  sometimes  in  the 
alternative  ;  and  several  breaches  may  be  assigned  at  common 
Iaw;(rf)  and  damages  being  the  object  of  the  suit,  should  be 
laid  sufi'icient  to  cover  the  real  amount. 

In  covenant  there  is  strictly  no  filea  which  can  be  termed  a  ge- 
neral issue,  for  jioji  est  factum  only  puts  in  issue  the  fact  of  seal- 
ing the  deed  ;(<?)  and  no7i  mfregit  conventionem,  and  nil  debet  are 
insufficient  pleas  ;  and  therefore,  most  matters  of  defence  must 
be  pleaded  specially. (y)  The  judgment  in  this  action  is,  that 
the  plaintifl'  recover  a  named  sum  for  his  damages  which  he 
hath  sustained  by  reason  of  the  breach  or  breaches  of  covenant 
together  with  full  costs  of  suit,  to  which  the  plaintiff  is  entitled, 
•^    117  though  the  damages  *recovered  be  under  40s.(g)  unless  the 

judge  certify  under  the  statute  Eliz.(h)  When  the  defendant 
suffers  judgment  by  default,  he  is  not  bound  in  this  action  to 
put  in  bail  in  error,  which  circumstance  renders  the  action  of 
debt  for  rent  or  money  due  on  a  contract  for  a  sum  certain,  pre- 
ferable to  covenant.(/) 


IF.  DETLXUE.{*) 

Ti'  DeHmie.  The  action  of  detinue  is  the  only  remedy  by  suit  for  the  re- 
covery of  a  personal  chattel  in  specie,  unless  in  those  cases 
where  the  party   can  regain  the  possession   by  replevin  :  for 


(f/)  Post,  vol.  '2.    194.  n.  v.     Com.  jnincd  in  the  same  action,  thoug;h  the 

Dig.  Pleader,  3.  V.  2,  3.     Com.  Rep.  jiulgment  is   (lifTcrenl,    see   Brownl. 

145.  He<!.  186.      Cxilb.  C.  P.  5.       2  Saund. 

(c)  Com.  Dig.  Pleader,  2.  V.  4.  &c.  117.  b.  and  as  it  has  been  generally 

ST.  1>.  283.     1  Lev,  183.  stated  that  detinue  is  not  sustainable 

(./  )  Com.  Dig.  Pleader,  V.  4.  kc.  when  the  goods  came  torttortsly  into 

(^•)  Tidd,  3d  ed.  880.  the  defendant's  possession,  (see  3  Bl. 

(/))  43  Eliz.  c.  6.     Tidd,  870.  Com.   152.    pest,   119.)  1  hare  there- 

(/)  Tidd,  1077  to  1079.  tore  considered  this  action  under  the 

(*)  As  debt  and  detinue  may  be  head  of  actiujis  ex  contractu. 


OF  THE  FORM  OF  ACTION.  117 

in  tlic  actions  of  trespass  and  trover,  for  taking  awav  or  JV.  Bainw 
detaining  goods,  or  in  assum/isit  for  not  delivering  them, 
damages  only  can  be  recovered. (^')  This  action  may  be  con- 
sidered ;  1st.  With  reference  to  the  nature  of  the  thing  to  be  re- 
covered ;  2dly.  TheplaintiflF's  interest  therein  ;  SJly.  The  in- 
jury;  4thly.  The  pleadings;  and  5thly.  The  judgment. 

As  the  object  of  this  action,  is  the  recovery  of  a    specific   1st.  For  wlia''. 
chattel,  the  goods  for  which  it  is  brought,  must  be  distinguish-  {i^.J 
able  from  other  property,  *and  their  identity  ascertainable  by  *   118 

some  certain  means  :  thus  it  lies  for  a  horse,  a  cow,  ov  money 
in  a  bag,;  but  for  money  or  corn,  &c.  not  in  a  bag  or  chest  or 
otherwise  distinguishable  from  property  of  the  same  descrip- 
tion, detinue  cannot  be  supported. (>t)  It  lies  upon  a  contract 
for  not  delivering  a  specific  chattel  in  pursuance  of  a  bailment 
or  other  contract ;(/)  but,  as  to  support  this  action,  the  pro- 
perty in  some  particular  chattel  must  be  vested  in  the  plaintiff, 
assufnjisit  or  debt  in  the  detinet  is  the  only  remedy  for  the  non- 
delivery of  corn.  Sec.  sold,  where  no  specific  corn  was  contract- 
ed for.(7H) 

A  person  who  has  the  absolute  or  general  property  in  goods,  2illy.     The- 

,    ,         .    ,  .  ,.  .    '  ...         plaintiff's  iifc- 

and  the  right  to  immediate  possession,  may  support  this  action  terest. 
although  he  has  never  had  the  actual  possession ;  therefore  an 
heir  may  maintain  detinue  for  an  heir  loom  ;  and  if  goods  be 
delivered  to  ^  to  deliver  to  B,  the  latter  may  support  this  ac- 
tion, the  property  being  vested  in  him  by  the  delivery  to  his 
use.Cw)  But  if  the  plaintiff  have  not  the  right  to  the  imme- 
diate possession  of  the  goods,  and  his  interest  be  in  reversion, 
he  cannot  support  detinue,  trover,  or  trespass. (o)  A  person 
who  has  only  a  special  property,  as  a  bailee,  he.  may  also  sup- 
port this  action,  where  he  delivered  the  goods  to  the  defendant, 
or  they  were  taken  out  of  such  bailee's  custody. (/;)     It  is  said 


(i)  3B1.   Com.  UG.   152.     "Willes,  (//:)  3  Wood.l.  104.     1  Dyer,  24.  b. 

120.      Co.   Lit.   296.    b.      Com.  Di-  („)  2  Saund.  47.  a.  n.     IKro.  Abr. 

Detinue,  A.  Detinue,  jil.  30.  45.    1  Roll.  Abr.  OOG. 

(*•)  Com.  Dig.  Detinue,  B.  C.    Co.  Cora.  Di-  Detinue,  A. 

Lit.  286.  b.    3  Bl.  Com.  152.    2  Bulstr.  (o)7T.l{.  9. 

■^'8.  (^)  Bro.  Abr.  Dctimic.      2  Saund. 

(/)    Fitz.  X.  B.  158.     Willes,   120.  47.  b.  c.  d. 
jBl.  Com.  152. 


j.un'. 


Iti^*^  OF  THE  FORM  OF  ACTION. 

JV.  Detinue,  tiiiit  if  a  person  *detuin  the  goods  of  a  woman,  Avhich  came  iu 
his  hands  before  her  marriage,  the  husband  alone  must  bring 
this  action,  liecause  the  property  is  in  him  alone  at  the  time  of 
the  action  brought. (y) 

sdiy.  The  111-  Tlic  gist  of  this  action  is  the  wrongful  detainer,  and  not  the 
original  taking. (r)  It  lies  against  any  person  who  has  the  ac- 
tual possession  of  the  chattel,  and  who  acquired  it  by  lawful 
means,  as  either  by  bailment,  delivery,  or  finding. (s)  It  is  a 
common  doctrine  in  the  books  that  this  action  cannot  be  sup- 
ported, if  the  defendant  took  the  goods  tortiou6li/,(('j  an  opinion 
which  appears  to  be  founded  on  the  judgment  of  Brian,  Ch. 
J.  who  held,(?0  that  detinue  could  not  in  such  case  be  support- 
ed, because  by  the  trespass  the  property  of  the  plaintiff  was 
divested,  and  that  in  order  to  support  detinue,  the  property  in 
5J>e  chattel  must  be  vested  in  the  plaintiff  at  the  time  of  the 
eommencement  of  his  action  ;(-7y)  but  it  is  observable  that  Fa- 
visor,  J.  in  the  same  case,  was  of  a  different  opinion :  and  the 
notion  that  the  property  is  changed  by  the  trespass  appears  un- 
founded, for  though  a  trespasser  die  possessed,  the  property  is 
not  thereby  altered  ;(.c)  and  it  has  been  decided  that  if  goods, 
Sec.  taken  away  still  continue  in  specie  in  the  hands  of  the 
120  wrong-doer  or  his  executor,  replevin  or  detinue,  *may  be  sup- 

ported by  or  against  the  executor  :(_?/)  and  though  in  pleading 
it  is  usual  to  state  that  the  defendant  acquired  the  goods  by 
finding,  yet  that  allegation  is  not  traversable  :{z)  and,  as  ob- 
served in  Kettle  V.  Bromselh[a)  if  detinue  could  not  be  support- 
ed a  person  might  be  greatly  injured,  aiul  have  no  adequate 
remedy;  for  in  trover,  damages  only  can  be  recovered,  and  the 
thing  detained  may  be  of  such  a  description  that  a  judgment 


{cj)   Bull.  X.  V.  .50.      Ante,  CO,  1.  (»/)  r,  II.  VTl.  c.  9. 

Sed  vide  11.  T.  Hanhv.  120.  (-.r)  6  H.  VII.  e.  9.    Lonl  Kciiyon^ 

(;•)  3  BI.  Com.  15:2.  Co.  Lit.  280.  b.  Cli.  J.  in  I  East,  107,  8.  obsci-ved  up- 

(s)  Wiiles,  US.        Co.  Lit.   -I'iu.  h.  on  this  iloi-trine  of  the  propoilv  be- 

J'itz.  X.  13.  13S.  E.        B;ic.  Abr.  Ue-  ing  altered  by  a  trespass. 

Unuc.  (■(■)  Com.  Dig.  tit.  Bien,  E. 

(;)  G  n.  Vn.  c.  9.    3  Bl.  Com.  1.V2.  (//)  Sir  W.  Jones,  173,  4.     1  Sauiid. 

Bro.  Abr.  Detinue,  pi.  35.  i3.     Com.  21 C.  a. 

Dig.  Detinue,  D.     Yin.  Abr.  Detinue,  (:)    Doc.    Plae.    124.      Bro.    Abr 

B.  2.  pi  . 5.  Trespass,  Y.  pi.  12.      Cro.  Detinue,  i>l.  50.     1  New  Rep.  lit). 

Eiix.  824.     ScW-yn,  N.  V.  Detinue.  («)  Willes,  120. 


OF  THE  FORM  OF  ACTION.  1:20 

merely  for  damages  would  be  an  inadequate  satisfactIon.(6)  jy.  Detinue. 
Dclinuc  cannot  be  supported  against  a  person  who  never  hud 
the  possession  of  the  goods  ;  as  against  an  executor  on  a  bail- 
ment to  the  testator,  unless  the  goods  canie  to  the  possession 
of  the  executor  ;(c)  nor  does  it  lie  against  a  bailee,  if  before 
demand  he  lose  them  by  accident  ;(ri)  though  if  he  wrongful- 
ly deliver  the  goods  to  another,  he  will  continue  liable. (c)  If 
goods  be  delivered  to  a  feme  before  her  marriage,  and  after- 
wards detained,  the  action  may  be  brought  against  husband  and 
wife  ;{/)  but  if  the  bailment  were  to  the  husband  and  wife  after 
marriage,  it  is  said  that  the  husband  must  be  sued  alone.(5') 

With  respect  to  the  pleadings  in  this  action,  more  certainty  The  pk-id- 
is  necessary  in  the  description  of  the  chattels,  than  in  an  action  "'»*' 
of  trover  or  replevin  ;(/;)  but  it  is  not   necessary  to  state  the 
*date  of  a  deed  ;(2)  and  if  the  action  be    brought  for  several  ^    121 

articles,  the  value  of  each  need  not  be  stated  separately  in  the 
declaration,  though  the  jury  should  sever  the  value  of  each  by 
their  verdict.(^")  In  the  case  of  a  special  bailment,  it  is  pro- 
per to  declare,  at  least  in  one  count,  on  the  bailment,(/)  and  to 
lay  a  special  request ;(?«)  but  in  other  cases,  it  is  sufficient  to 
declare  upon  the  supposed  finding,  which  we  have  seen  is  not 
traversable. («)  The  general  issue  in  this  action  i%non  dednet^ 
and  under  it  the  defendant  may  give  in  evidence  a  gift  from 
the  plaintiff,  or  any  other  defence  which  proves  that  the  de- 
fendant doth  not  detain  the  plaintiff's  goods ;  but  the  defendant 
must  plead  specially  that  the  goods  were  pawned  to  him  for 
money  remaining  unpaid.(o) 

The  nature  of  this  action  requires  that  the  verdict  and  judg-  The    verdw-r. 
mcnt  be  such,  that  a  specific  lemedy  may  be  had  for  recovery 
of  the  goods  detained,  or  a  satisfaction  in  value  for  each  seve^'al 


andiadarment 


{b)   See  also  Cro.  Eliz.  S24.     Cora.         (0  1  "Wils.  116. 
Bi^'.  Action,  M.  6.     v;  H.  \  ill.  c.  22.         (A)  2  Bl.  Rep.  S53.      Post,  vol.  2. 

Viii.  Abr.  Detinue,  D.  5.  pi.  GtJ.  230. 

(r)   Bio.   Detinue,  19.       2  liulstr.        (/)  I  New  Rep.  1-iC.     Post,  vol.  2. 

■W8.  23fi.  n.  (A.) 

(r/)  Ri-o.  Detinue,  pi.  1,2,  3.  iO.  («j)  Willes,  120.    Post,  vol.  2.  23f.. 

{<;)  Id.  ibid,  iu.d  pi.  2.  34.  n.  0'.) 

(/)  Co.  Lit.  351.  b.  (m)  1  New  Rep.  140.    4  T.  R,  2^?0- 

(5-)  2  Bulstr.  308.     38  E.  IIT.  fol.  1.  Wiiles,  120. 

(/;)  2Saund.  74.  a.  h.    Co,  J.i».  28^  (>•)  C  Co  Lit.  28."^' 

b.     Post,  vol.  2.  23 S.  n.  f 


121  OF  THE  FORM  OF  ACTION. 

U'.  Detinue,  parcel,  in  case  they,  or  either  of  them,  cannot  be  returned  ; 
and  therefore,  where  the  action  is  for  several  chattels,  the  jury 
ought  by  their  verdict  to  assess  the  value  of  eafch  separately  ;(/i) 
and  if  the  jury  neglect  to  find  the  value,  the  omission  cannot 
be  supplied  by  urit  of  inquiry .(^r)     The  judgment  is  in    the 

'*  122  alternative,  that  the  plaintiff  *do  recover  the  goods,  or  the 
value  thereof  if  he  cannot  have  the  goods  themselves,  and  his 
damages  for  the  detention,  and  his  full  costs  of  suit.(r)  This 
action  is  in  most  cases  still  subject  to  wager  of  law,  on  which 
account  it  was  not  much  in  use  till  that  mode  of  trial  became 
obsolete,  but  now  it  is  frequently  adopted* 


OF  ACTIO.YS  LX  FORM  EX  DELICTO. 

.Xatiirc  of  in-       Personal  actions  in  form  ex  delicto,  and  which  are  principallv 

Junes    ex  . 

Delicto.  for  the  redress  of  wrongs  unconnected  with  contract,  are  case, 
trover,  detinue,(s)  replevin,  and  trespass  -vi  et  armis.  Mixed 
actions  are  ejectment,  waste,  he.  Before  we  consider  the  ap- 
plication of  these  remedies,  it  is  advisable  to  take  a  concise 
view  of  the  nature  of  ihe  different  injuries  ex  delicto,  because 
they  in  general  govern  the  form  of  the  action  ;  thus  if  the  in- 
jury be  forcible,  and  occasioned  immediately  by  the  act  of  the 
defendant,  trespass  vi  et  ar}nis  is  the  proper  remedy ;  but  if 
the  injury  be  not  in  legal  contemplation, yord^/e,  or  not  direct 
and  immediate  on  the  act  done,  but  only  consequential,  then  the 
*  103  remedy  is  by  action  o?z  the  case  ;it)  and  *there  are  other  points 
relating  t.o  the  nature  of  injuries,  which,  as  they  affect  the  form 
of  the  action,  are  material  to  be  ascertained. 

Injuries  ex  delicto  are  in  legal  consideration  committed  with 
force,  as  assaults  and  batteries,  Sec,  or  ivithout  force,  as  slander, 


(j!^)      2  151.   Rep.    854.       3  H.  VI.  tliis  action,  tvhich  we  have  seen  lies 

i.3.  a.  for   non-delivciy  of  goods  according 

(9)  10  Co.  119.  b.     Salk.  20C.  to  a  contract,  and  tlierefoi-e  it  is  un- 

()•)  Cro.  Juc.  GSt^,  3.  I'idd's  Forms,  necessary  to  give  il  further  considei-a- 

302.    Townsend's  Judgment,  1  Book,  tion. 

344.    '2  Book,  82,   3,   4,  5.      Aston's  (0    3  Ean,  593.  600.      Ld.  Raytu. 

Ent.202.     2Ktihv.  04.  1399.     Stra.  634.     2T.R.  231.     5  T- 

(e)  We   have  already  considered  R.  649.     8  T,  R.  190. 


OF  THE  FORM  OF  ACTION.  123 

&c.(t<)  They  are  also  cither  immediate  and  direct^  or  mediate  and  JVature  ttf  in- 
consequential.    It  is  frequently  difficult  to  determine  when  the      '''^'jjcilaf 
injury  is  to  be  considered  forcible  or  not,  and  Avhcn  immediute 
or  consequential,  and  therefore  whether  trespass  or  case  is  the 
proper  remedy. (ty) 

Force  is  in  letral  consideration  of  two  descriptions,  cither 
implied  by  law  or  actual ;  force  is  im/ilied  in  every  trespass  t/uare 
clausu?n /regit .(x)  The  distinction  is  material,  and  is  thus  put 
in  Sal/celd  t  '<  If  one  enter  into  my  ground,  I  must  request  him 
"  to  depart,  before  I  can  lay  hands  on  him  to  tuin  him  out ;  for 
"  every  im/ioaitio  t.ictnuum  is  an  ass.ailt  and  battery,  which  can- 
"  not  be  justified  upon  tlie  account  of  breaking  the  close  z/z  law 
"  without  a  previous  request  to  depart ;  the  other  is  an  actual 
"  force,  as  in  burglary,  as  breaking  open  a  door  or  gate,  and  in 
"  that  case  it  is  lawful  to  oppose  force  to  force  ;  and  if  one 
"  break  down  the  gate,  or  come  into  my  clos-  vi  et  armis,  I 
"  need  not  request  him  to  be  gone,  but  may  L,y  hands  on 
"  him  immediately  ;  so  if  one  come  forcibly  and  take  away 
my    goodS)   I   may    immediately    oppose    him,    for    "   *thcre  ^    124> 

is  no  time  to  make  a  requcst."(r/)  In  the  case  of  false 
imprisonment  also  force  is  implied  ;(r)  and  the  same  rule 
prevails  where  a  wife,  daughter,  or  servant  have  been  enticed 
away  or  debauched,  though  in  fact  they  consented,  the  law  con- 
sidering them  inc.ipable  of  consenting  ;  and  trespass  may  be 
supported,  though  case  for  the  consequence  of  the  w:on;:^  ap- 
pears to  be  tlie  more  proper  form  of  declaration. .'a)  The  de- 
cree of  violence  with  which  the  act  is  done  is  not  material  as 
far  as  regards  ihc  form  of  action,  fur  if  a  log  were  put  down  in 
the  most  quiet  way  upon  a  man's  foot,  the  action  would  be  tres- 
pass ;  but  if  thrown  into  the  road  with  whatever  violence-  and 
One  qfter'u>ard6'  fell  over  it,  it  v*ould  be  case  and  not  tresp:.ss.((i) 
With  respect  to  injuries  to  a  rijht  or  a  proper Ly  not  tuntfidlef 


OO  3  Bl.  Com.  118.  308,  'J.  (z)    \    New    Rpp.  255.     1  Selwynj 

(ly)  Ante,   l'22.  n.  t.     '2  Xcw,  118,  N.  P.  a<!(leiitla,  563. 

ll'J.      8  T.  R.   101.      2  Burr.   1114.  (a)  3  Wi!s.  IS.     Fitz.  X.  B.  89.  O- 

2  XLwRep.:3fi5.  454.  5   T.  R.    .301.       6  Kast,   58/.      3  Bl 

(a)  2Salk.  641.     Co.   Lit.   257.   b.  Com.  140.     2  New  Kep.  365.  454. 

ICl.  b.  162.  a.  1  Sauiul.  81.  140.  n.  4.    8  (l-)  Per  Lc  Blanc,  .1.     3  East,  60-2. 

T.  R.  78.  358.    15ac.  Abr.  tit.  Tie.spass.  1  Sti-a.   630.     5  T.  R.  6 iO      2   y-^'-- 

((/)2Salk.   641.     S  T    R.  78.  357.  Rep.  365.  454. 

Vol.   I.  [    12    I 


121  OF  THE  FORM  OF  ACTION. 

jYanire  o/in-  such  as  reputation  and  health  ;  and  real  properly  incorporeal,  as 

jw'ies  ex  ,.  , 

Delicto.        a  right  ot  way,  comnion,  kc.  as  the  matter  or  property  injured 

cannot  be  afiectcd  immediately  by  any  substance,  llie  injuries 
thereto,  however  malevolent  and  however  contrived,  cannot  be 
considered  as  conrmiticd  with  iorce  ;  c)  and  in  general  a  mere 
7ionf(asance  cminot  be  considered  as  forcible,  ior  where  tiicre 
has  been  no  act,  there  cannot  be  force,  as  in  the  case  of  a  neg- 
lect to  take  away  tithes, (r/)  or  a  mere  detention  of  goods  with- 
^   12o  out  an  unlawful  taking  ;(f')  or  *the  neglect  to  repair  the  banks 

of  a  river,  whereby  the  plaintiff's  land  was  overflowed,(y)  or 
neglect  to  redeliver  a  beast  distrained  damage  feasant,  when 
sufficient  amends  were  tendered  before  the  beast  was  impound- 
ed.(5")  When  ii  is  material  to  rely  upon  actual  force  in  Jilead- 
vig;  as  in  the  case  of  a  forcible  entry,  the  words  ''  inanu  /orti" 
or  "  with  strong  hand,"  should  be  adopted  j(/i")  but  in  other 
cases  the  words  "  vi  ct  annis"  or  with  force  and  arms,  are  suf- 
ficient.(/) 

When  iinmc-       ^j^  injury  is  considered  as  immediate  when  the  act  complain- 
iliate    or  cou-  ^      ^  ^ 

sequential.        ed  of  itself  iiwCx  not  merely  a  consrc/iitnce  of  that  act,  occasions 

the  injury  ;  thus  if  a  blow  be  given  by  one  to  another,  or  he 
drive  a  carriage  and  horses  against  him  or  his  property,(i{r)  or 
if  he  pour  water  on  anotlier  pei'son  or  his  land,(/)  or  do  any  act 
thereon  ;o/z)  or  if  a  wild  beast  or  other  dangerous  thing  be 
turned  out  or  put  in  motion,  and  mischief  immediately  en- 
sue ;(n)  or  if  a  log  be  thrown  into  a  highway,  and  in  the  act  of 
throwing  or  falling,  hit  another,  the  injury  is  immediate,  and 
trespass  is  the  remedy  :(&)  and  where  a  lighted  squib  was 
thrown  in  a  market-place,  and  afterwards  thrown  about  by  others 
in  self-defence,  and  uhimately  hurt  the  plaintiff,  the  injury  was 
considered  as  the  immediate  act  of  the  first  thrower,  and  a  tres- 
pass ;  the  new  direction  and  new  force  given  it  by  the  other 
^    126         persons  not  being  a  new  trespass,  *but  merely  a  continuation  of 


(f)  3  EI.  Com.  ^'2%S.  {h)  8  T.  U.  357.  378. 

((/)  1  B.  &  P.  47{).     Ld.  Ilaym.  18S.  (/)  Id.  ibid.     Ante,  123.  n.  x. 

(f )  2  Saund.  47.  k.  1.  {k)  3  East,  5<)3.  597. 

(./')  Ero.  Abr.  Act.  Surlc  Case,  pi.  (/)  2  Ld,  Raym.  1403. 

36.  '  Filz.  N.  B.  93.    Bac.  Abr.  Trcs-  (w)  1  Ld.  Raym.  188. 

pa.ss.  (Ji)  3  East,  59G. 

(j)  8  Co.  146.  (o)  1  Stra.  633,    Ante,  122. 


OF  THE  FORM  OF  ACTION.  126 

the  original  force  ;(/0  and  where  the  defendant  driving  his  car-'  Xauirc  of  in- 
riageon  the  wrong  side  of  a  road,  when  it  was  dark,  by  accident     ''"j}^:i:r.io. 
drove  against  the  plaintiff's  curricle,  it  was  holden  that  the  inju- 
ry which  the  plaintiff  had  sustained,  having  been  immediate  from 
the  act  of  driving  by  the  defendant,  the  proper  remedy  was  tres- 
pass.(y) 

But  where  the  damage  or  injury  ensued  not  directly  from  the 
act  complained  of,  it  is  termed  conse'jwntial  or  mediate,  and 
cannot  amount  to  a  trespass  ;  thus  in  the  instance  just  stated,  if 
a  log  in  the  act  of  being  thrown  into  the  highway,  hit  another, 
the  injury  is  immediate  ;  but  if  after  it  has  fallen,  another  tum- 
ble over  it  and  be  hurt,  the  injury  is  only  consequential  and  the 
remedy  should  be  case  :(r  so  if  a  person  pour  water  on  my 
land,  the  injury  is  immediate  ;  but  ilhe  stop  up  a  water-course 
on  his  own  land,  or  if  he  place  a  spout  on  his  own  building,  in 
consequence  of  which  water  afterwards  runs  therefrom  into  my 
land,  the  injury  is  consequential,  because  the  flowing  of  the  ruin 
water  which  was  the  immediate  injury,  was  not  the  wrongdoer's 
immediate  act,  but  only  the  consequence  thereof,  and  which 
•will  not  render  the  act  itself  a  trespass,  or  an  immediate 
wrong.(s) 

It  is  chiefly  in  actions  for  running  down  ships,  that  difficulties 
occur,  because  the  force  which  occasions  the  injury  is  not  in 
such  case  necessarily  *ihe  immediate  act  of  the  person  steer-  ^    J  27 

ing,  for  the  wind  and  waves  may  and  generally  do  occasion  the 
force,  and  the  personal  act  of  the  party  rather  consists  in  put- 
ting the  vessel  in  the  way  to  be  acted  ujion  by  the  wind,  and  the 
injury  might  even  have  happened  from  the  operation  of  the  wind 
and  tide  counteracting  his  efforts. (w)  In  the  case  of  injuries 
arising  from  driving  carriages  or  navigating  ships,  if  the  injury 
were  immediate,  and  be  stated  in  the  declaration  to  have  been 
luilfnlly  committed,  or  appear  to  have  been  so  on  the  trial,  the 
remedy  must  be  trespass  ;(u')  but  if  the  injury  were  attributa- 
ble to  negligence,  though  it  were  immediate,  the  party  injured 


(/>)   3  Wils.  403.     2B1.  IJcp.  892.  (.«)  Stra.  0.34,  5.     Lil.  Riym.  1399- 

S  T.  R.  190.  2  Burr.  It  14. 

(9)  3  East,  593.     2  New  Rep.  117.  (w)  3  East,  GOl.  603..    8  T.  R.  192. 

(j-)  3  East,  602.     !   Stia.  030.     5  1  B.  k  P.  4r6. 

T.  R.  Gi9  («)  8  T.  R.  188.     5  East,  601. 


127  OF  THE  FORM  OF  ACTION. 

Aafnre  of  in-  has  an  election,  either  to  treat  the  ne^liq;ence  of  the  defendant 
DelictQ.  as  the  cause  of  action,  and  to  declare  in  case  ;  or  to  consider  the 
act  itself  as  the  injury,  and  to  declare  in  trespass.(jr)  In  Scott 
V.  Shepkerd^iy)  Mr,  Blackstone  said,  that  a  person  may  bring 
trespass  for  the  immediate  injury,  and  subjoin  a  per  quod  for  the 
consequential  damage,  or  case  for  the  consequential  damage, 
passing  over  the  immediate  injury  ;  and  in  Pitts  v.  Gaince  and 
another.Cr  where  the  declaration  was  in  case,  and  stated  that 
tlie  plaintiff  was  master  of  a  ship  laden  with  corn,  ready  to  sail, 

*    128  s"d  that  the  defendant  seized  the  *ship  and  detained  her,  where- 

by the  plaintiir  was  prevented  from  proceeding  in  his  voyage, 
an  exception  was  taken  that  the  declaration  should  have  been 
trespass,  and  several  cases  weie  cited  ;  but  Lord  Holt  observed 
that  in  those  cases,  the  plaintiff  had  a  property  in  the  thing  taken, 
but  here  th,e  ship  was  not  the  master's,  but  the  owner's ;  the 
master  only  declared  as  a  particular  officer,  and  could  only  re- 
cover for  his  particular  loss,  yet  he  might  have  brought  tres- 
pass, as  a  bailee  of  goods  may,  and  declared  upon  his  posses- 
sion, which  is  sufficient  to  maintain  trespass  Hence  it  appears 
that  either  trespass  or  case,  may  sometimes  be  supported  where 
there  is  both  an  immediate  and  also  a  cojisequentiul  m'nwy .{a') 

J^egality  of  an       The  legalitxi  or  illegality  of  the  original  act  is  not  in  general 
orijjiiud  act  .       .        "  .    .  ... 

ngc  material,  the  criterion  whether  the  injury  was  immediate  or  conseqvien- 
-     i  lial,  or  w^hether  the  remedy  should  be  trespass  or  case  ;{b)  for 

a  person  may  become  an  immediate  trespasser  vi  et  armis,  even 
in  the  performance  of  a  lawful  act,  if  in  the  course  of  such  per- 
formance he  be  gi'.ilty  of  nep;lect,  as  if  he  hurt  another  by  acci- 
dent, yet  he  is  answerable  in  trcsix'.ss  vi  et  armis,  as  for  an  imme- 
diate injury  ;(c)  so  case  Avjll  lie  for  doing  an  unlawful  act,  if  the 
damage   sustained  thereby   he  not  immediate  but  consequen- 

'4:    129  tial  ;CfO  however,  if  the  injury  were  *under  regular  process,  as 


(x)    2    New  Eep.    11".     S   T.    R.  Mod.    ISO.   1   semi),    contra.     2  Xew 

1S8.     3  East,  601.     1  B.  k  P.  *7-2.  Rep.  365.454. 

{y)  2  Bl.  Rep.  897.     11  Mod.  180.         {!>)  1  Stra.  6,35.  n.  2.     3  East,   001. 

4  Co.  94.  b.  95.     Hob.  ISO.     Sty.  9.l>.  3  Wils.  409.     2  Bl.  Rep.  S94.    2  New 

1  B.  &  P.  475.     2  Burr.  1113.     Salk.  Rep.  365.  454. 
JlO.  (r)  Id.  ibid.     3  M'ils.  411.     1  Stra. 

(:)  1  Sfdk.  10.  590.     27  Hen.  Yll.  i28.  a. 

ra)lSaIk.   10.  n.  a,     Sed  vide   11         (a')  11  Mod.  ISO.     3  Wils.  410,11, 

2  Bl.  Rep.  895. 


OF  THE  FORM  OF  ACTION.  129 


in  the  case  of  a  malicions  arrest  ov  prosecution,  though  such  .A  «?«re  «/"  <«- 

jiiriea   ex 

injury  were  forcible  and  immediate,  yet  the  remedy  must  be     "  Delicto. 
case.(f) 

Nor  is  the  it7(ent  or  clesicm  of  the  wronedoer  the  criterion,  Ii'tfnt.   "^•^'cn 
'^  ^  _  iiiatenal. 

as  to  the  form  of  the  remedy ;(/)  for  where  the  act  occasion- 
ing an  injury  is  unlawful,  the  intent  of  the  wrongdoer  is  im- 
material ;{g)  and  it  is  clear,  that  the  mind  needs  not  concur  in 
the  act  that  occasions  an  injury  to  another,  and  if  the  act  occa- 
sion an  immediate  injury,  trespass  is  the  proper  remedy  wiUi- 
out  reference  to  the  intent ;(//)  if,  however,  in  pleading,  the  in- 
juiy  be  stated  to  have  been  committed  wilfully,  and  in  other 
respects  it  be  uncertain  whether  it  were  immediate  or  conse- 
quential, the  court  will  consider  it  as  an  immediate  injiiry.(/; 
There  are  many  cases  in  the  books,  where  the  injury  being  di- 
rect and  immediate,  trespass  has  been  holden  to  lie,  though  the 
injury  were  not  intentional,  as  in  Weaver  v.  Ward,{k)  where 
the  defendant,  exercising  in  the  trained  bands,  and  firing  his 
iTiusket,  by  accident  hurt  the  plaintiff;  and  in  Uticlertvood  v. 
JIe'wsov,{l)  where  one  uncocking  a  gun,  it  went  off,  and  acci- 
dentally wounded  a  by-stander  ;  and  if  one  turning  round  sud- 
denly, were  to  knock  another  down,  whom  he  did  not  see, 
without   intending    it,    no    doubt  the  *acUon  should   be   tres-  *    |3() 

pass  ;(w)  and  where  a  person  accidentally  drives  a  carriage 
against  that  of  another,  the  injury  is  immediate,  and  trespass 
the  remedy,  though  the  defendant  was  no  otherwise  blameable 
than  in  driving  on  the  wrong  side  of  the  road  on  a  dark  night. (/i) 
However,  in  favour  of  public  officers,  who  are  bound  to  obey 
the  process  of  the  courts,  if  a  sheriff,  after  a  secret  act  of  bank- 
ruptcy committed  by  ^,  levy  goods  under  an  execution  against 
him,  he  cannot  be  s>ued  by  the  assignees  in  trespass  but  only  in 
trover,  because  such  public  officers  ought  not  to  be  made  trespas- 


(<;)  3  T.  R.  185.  (0  3  East,  595.   601.     8  T.  R.  101. 

(,/■)  3  Wils.  309.     2  Bl.  Rep.  S3'2.  1  East,  109.     2  Burr.  1114. 

3  East,  599.  001.  (k)  Hob.  134. 

(5-)  CEast,  464.  473,4.     2  East,  (/)  I  Stra.  596. 

107.  (m)    Per  Ld.   EUcnboroiigh,    and 

(A)  Per  Lil.  Kenyon,  8  T.  R.  190,  Lawrence,  J.     3  East,  595,  6. 

3  East,  599.  001.  (n)  3  East,  593.     Qu.  2  New  Rep 

119. 


130  OF  THE  FORM  OF  ACTION. 

Mature  of  in-  scrs  by  relation  ;(o)  aiul  in  some  other  cases,  though  the  intent 
"^^DeUcto^  may  not  be  material  to  the  form  of  action,  it  may  .decide  whether 
any  action  be  sustainable,  as  if  the  intent  be  felonious.  >vhen  the 
civil  remedy  may  be  merged  in  the  ^lony,  or  where  words  /ir/- 
ma facie  slanderous  were  not  spoken  maliciously;  and  in  some 
cases  of  involuntary  trespasses  to  land,  committed  not  by  the 
party  himself  but  by  his  cattle,  a  tender  of  amends  may  be 
pleaded. (/z) 

For  some  torts  which  may  pritna  facie  appear  to  be  forcible 
and  immediate,  as  for  an  excessive  distress,(y)  or  for  driving  a 
distress  out  of  the  county  in  which  it  was  taken, (r)  or  for  in- 
juries to  personal  or  real  property  in  reversion,(.s)  or  against  a 
''^    131         bailee  of  personal  property  *having  an  interest  therein,  and  who 
has  injured  the  siime,  but  not  destroyed  it,(/;)  an  action  on  the 
case  is  the  proper  remedy  :  so  though  a  master  may  be  liable 
to  compensate  an  immediate  injury  committed  by  his  servant 
with  force,  yet  the  action  against  him  must  be  case,  though 
against  the  servant  it  should  be  trespass. (u) 
Summai-y    of       From  this  concise  view  of  the   nature  of  injuries  ex  delicto^ 
votnis'  ' oir'    ^^  '^^'^^^  ^s  from  the  following  observations  on  the  properties  of 
vliich    the      gjich  particular  action,  it  may  be  collected,  that  there  are  four 

lorm  of  ai'tion  *^  ... 

may  depend,  leading  points  to  be  attended  to,  in  deciding  what  form  of  ac- 
tion should  be  adopted.  First.,  the  nature  of  the  matter  or  thing 
affected  ;  secondly^  the  plaintiff' 's  right  thereto  ;  thirdly^  the 
means  by  whiqh  the  injury  was  effected;  axid  fourthly,  the  si- 
tuation in  which  the  defendant  stood. 

And  first,  the  nature  of  the  matter  or  thing  affected  ;  as 
whether  it  were  substance  or  tangible,  as  the  body,  personal 
chattels,  and  real  property  corporeal ;  or  not  tangible,  as  health, 
reputation,  and  real  property  incorporeal.  In  the  first  instances 
as  the  property  might  be  afTected  immediately  by  an  injury 
committed  with  force,  trespass,  case,  replevin,  trover,  or  de- 
tinue, may  or  may  not  be  sustainable,  depending  on  the  other 


(o)  1  Ran-.  20.     1  T.  R.  4S0.     t  (;•)   Id.  Ibid.     2  Inst.  106.     3  Lev. 

Lev.  173.  'IT.     2Su-a.  1272. 

{p')  21  Jac.  I.  c.  10.  s.  5.    Vin.  Abr.  (&)  4  T.  R.  489.     7  T.  R.  9.     Covo- 

Trospass,  5i2.     3  Lev.  37.  Dig.     Action  on  Case,  Nuisance,  R 

(o)  52  Hon.  III.  c.  4.     3  Rl.  Com.  (t)  Bac.  Ab.  Trespass,  B. 

12.  '  2  Su-a:  851.   I  Burr.  599.    Fitzg.  (w)  1  East,  108, 
85. 


OF  THE  FORM  OF  ACTION.  131 

three  points,  and  the  painicular  propcriies  of  each  action  ;(iy)  ^'^-.ture  of  in- 

*^  ,  .     .  juries  ex 

but  in  the  latter  instances,  an  action  on  the  case  is  in  general       Uelicio. 
the  only  remedy,  because  the  property  could  not  be  injured 
immediately  by  force. 

*<S£'cowc//z/,  the  nature  of  the  plaintiflF's  77^//Mo  the  matter  or  *  132 
thing  affected ;  as  if  in  the  person,  whether  it  were  absolute  or 
relative,  in  the  latter  instance,  case  being  sustainable,  however 
forcible  the  hijury  ;  or  if  to  personal  or  reul  property,  whether 
it  were  in  severalty  or  joint-tenancy,  or  in  common,  or  in  pos- 
session or  reversion  ;  in  the  last  instance,  neither  trespass,  tro- 
ver, replevin,  nor  detinue,  could  be  sxipported,  but  only  case.(jr) 

Thirdly,  the  means  by  which  the  injury  was  effected ;  as 
whether  it  were  a  commission,  or  an  omission,  in  the  latter 
case,  trespass  is  not  in  general  sustainable  ;(!/)  or  with  or  with- 
out force,  actual  or  implied,  for  if  without  force,  case  is  in  gene- 
ral the  remedy  ;(z)  or  immediate  or  consequential ;  in  the  lat- 
ter case,  trespass  is  not  sustainable  ;(a)  or  whether  the  injury 
were  committed  by  the  defendant  himself,  or  by  his  agent  or 
servant,  or  by  his  cattle,  or  property, (A)  or  under  colour  of  a 
distress  for  rent,  &c.  or  of  the  process  of  a  superior  or  inferior 
court. 

Fourthly,  the  situation  or  character  in  which  the  defendant 
stood,  as  whether  he  were  joint-tenant  or  tenant  in  common 
with  the  plaintiff  ;(c)  or  whether  there  were  any  privity  of  con- 
tract between  the  plaintiff  or  defendant,  in  respect  of  the  latter 
being  tenant  or  bailee,  when  in  general,  trespass  cannot  be  sup- 
ported.(a')  Keeping  in  view  these  important  points,  we  will 
proceed  to  consider  the  *nature  and  particular  applicability  of  *  133 
the  several  actions  in  form  ex  delicto. 


(w)  Replevin  lies  only  for  personal  (z)  Ante,  122,  3. 

property,  anil  not  for   taking  patt  of  (a)  Ante,  122.  125,  6. 

the  freehcUl.      4  T.  K.  504  (6)  Ante,  131. 

(x)  7  T.  R.  9.  (c)  Ante,  C6.    2  Saund.  47.  g. 

^j)  Ante,  124  {d)  Post,  Bac.  Ab,  Trespass,  E 


,133  OF  THE  FORM  OF  ACTION. 


/  ACTIO.Y  O.V  THE  CASE. 

I.  On  the  case.  We  havc  seen  that  this  action  is  so  termed,  as  distinguish-* 
ing  the  remedy  from  the  brevia  formata.(^e)  In  its  most  com- 
prehensive signification,  it  includes  assvm/isit  as  well  as  an  ac- 
tion in  foim  ex  d.^licto  ;  but  at  the  present  time,  when  an  ac- 
tion on  tlie  case  is  mentioned,  it  is  usually  understood  to  mean 
an  action  in  form  ex  delicto  ;  and  therefore,  where  a  navigation 
act  enacted  that  the  company  might  sue  for  calls,  Sec.  by  action 
of  debt,  or  on  the  case,  it  was  holden  that  an  action  on  the  case 
in  tort  lay,  though  the  defendant  might  thereby  be  deprived  of 
the  bcnefiit  of  a  sel-ofi'.(y') 

Actions  on  tlie  case  are  founded  on  the-common  law,  or  upon 
acts  of  purliunient,  and  lie  generally  to  recover  damages  for 
toj'is  not  committed  with  force  actual  or  implied,  or  having  been 
occasioned  by  force,  where  the  injury  was  not  immediate  but 
eonsequcntial,  or  where  the  interest  in  the  matter  affected  is  only 
in  reversion  when  trespass  is  not  sustainable. (g")     Torts  of  this 

■^  154  nature  are  to  the  absolute  or  relati^  rights  *of  Jiersojis^  or  to 
personal  firofiertij  in  possession  or  reversion,  or  to  real  property 
corporeal  or  incorporeal,  in  possession  or  reversion.  These 
injuries  may  be  either  by  notifcasaiice  or  the  omission  of  some 
act  which  the  defendant  ought  to  perform  ;  or  by  nn.-^fcasancey 
being  the  improper  performance  of  some  act  which  might  law- 
fully be  done  ;  or  by  malfcasurice.,  the  doing  what  the  defendant 
ought  not  to  do ;  and  these  respective  torts  are  commonly  the 
performance  or  omibsion  of  some  act  contrary  to  the  general 
obligation  of  the  law,  or  the  particular  rights  or  duties  of  the 
parties,  or  of  some  express  or  implied  contract  between  them. 
This  action  is  not  confined  to  injuries  merely  ex  delicto,  it  is  a 
concurrent  remedy  with  assuDt/isit  for  many  breaches  of  con- 
tract, not  merely  for  the  payment  of  money,  whether  the  breach 
were  no?ifcaiauce,  7niifcasance,  or  malfeasancc.Qi)  Thus  case 
lies  upon  an  express  agreement  for  obstructing  the.  piuintiff  in 
the  enjoyment  of  an  casement,  which  the  defendant  stipulated 


(e)  Ante,  S3,  4,  5.  09.  72.     Fitz.  X.  B.  94.  a.  l4o.  g.     1 

(/■)  7T.  li.  o6.  New  Rep.  4r.     6  East,  33.5.     .3  Wils 

(5)4T.  R.  489.     r  T.  R.  9.  354.     2  WUs.  319.     1  T.  R.  374, 
[Ji)  Bro.  Abr.  Aciiuii  ou  Ca^e,  pi  7. 


OF  THE  I'Oiai  0¥  ACllOxV.  j34, 

ihalUie  plaintiff  should  have  the  benefit  of ;(/)  and  it  is  al^o  a  I:  Onthecasp 
proper  remedy  against  bailees  for  neglii^eucc  in  the  care  of 
i^oodsjU')  and  it  seems  that  it  iies  even  for  noi  accountiii^-  for 
the  produce  of  bills  delivered  to  the  defendant  to  get  discount- 
ed.(/)  If  asmniijir-ilt  be  adopted,  the  contract  or  promise  must  be 
formally  stated  in  the  declaration  ;  but  in  cmsc  it  is  othcrwibe 
Avhich  *circumstance  constitutes    the  principal   difference   be-  ->c-    ^35 

tween  the  two  forms  of  action. ('/O  '1  he  judgment  of  Lord 
Kllenboroug/i,  Ch,  J.  in  the  case  of  GoveCtx.  Ku<li:hlgc^{n)  cx- 
I)lains  the  advantages  arising  in  many  instances  from  the  adop- 
tion of  the  action  on  the  case,  in  preference  to  the  acdon  of 
assiunjisic ;  viz.  "  there  is  no  inconvenience  in  sutlering  the 
"  party  to  allege  his  gravamen  as  a  breach  of  duty,  arising  out 
"  of  an  employment  for  hire,  and  to  consider  that  breach  of 
"  duty  as  tortious  negligence,  instead  of  considering  the  same 
••'  circumstances  as  forming  a  breach  of  promise  implied  from 
"  the  same  consideration  of  hire  ;  by  allovving  it  to  be  consider- 
"  ed  in  either  way,  according  as  the  neglect  of  duty  or  the 
"  breach  of  promise  is  relied  upon  as  the  injury,  a  multiplicity 
"  of  actions  is  avoided  ;  aijd^the  plainliff,  according  as  the  con- 
"  venience  of  his  case  recpures,  frames  his  principal  count  in 
"  such  a  manner,  as  either  to  join  a  count  in  trover  theresvith, 
"  if  he  have  another  cause  of  action  other  than  the  action  of 
"  assumpsit^  or  to  join  with  the  assiuvji-dt  the  common  counts, 
''  if  he  have  another  cause  of  action  to  which  they  are  appiica- 
"  ble  ;  and  other  advantages  ensue  from  the  adoption  of  case 
•■'  instead  of  a&sjimjuit,  viz.  that  in  the  former  aciicn,  the  de- 
''  fendant  cannot  plead  in  abatement  the  non-joinder  of  other 
"  parties    as   defendants  ;  and   the  plaintiff  will  recover,  if  he 

''  prove  one  of  several  defendants  to  be  liable. "(o) 

.       ■  .  .  *    136 

*Case  IS   the   proper  remedy  for  any  injury  to  the  abnolnte  -r.^ 

rights  (i/"y''''S^"y  not  immediate  but  consequential;  as  for  keep-  :ibs'-hittlv . 

ing  mischievous  animals,  having  notice  of  their  propensiiy  ;(/.') 


(i)  .5  AVils.  .348.  {),)  .3  Kast,  70. 

(A)  .3  East,  f:2.     1  T.  H.  27 \.  (->)  3  East,  C2.  TO.     C  East,  3.3.3, 

(/)  1  New  Rep.  4r.     C  East,  3iZ.  (/i)  Ante,    69,    70.      Post,  vol. 

(w)  Supra,  u'lU-  (/).     C  East,  3.5.).     2.3S  to  2i(>. 
Vol..   I.  [    1.3    ] 


130  OF  THE  FORM  OF  ACTION. 

J.Onthecaso.  or  for  special  damaf^e  arising  from  a  public  nuisance  ;(7)(*) 
but  if  the  injury  were  immediate,  as  if  the  defendant  incited 
his  dog  to  bite  another,  or  let  loose  a  dangerous  animal  ;(r) 
or  if  in  the  act  of  throwing  a  log  into  a  public  street,  it  hurt 
the  plaintiff  ;(5)  or  if  an  injury  be  commilted  by  cattleCO  to 
land,  the  action  should  be  trespass.  Also  whenever  an  injury 
to  a  person  is  e fleeted  by  regular  process  of  a  court  of  com- 
petent jurisdiction  though  maliciously  adopted,  case  is  the  pro- 
per remedy,  and  trespass  is  not  sustainable  ;(«)  as  for  a  ma- 
licious arrest  ;(to)  or  for  malicious  prosecution  of  a  criminal 
charge  before  a  magistrate  or  otherwise  ;(x)  and  if  the  pro- 
ceeding be  malicious  and  unfounded,  though  it  were  instituted 
in  a  court  having  no  jurisdiction,  case  may  be  supported  or 
trespass  ^(ij)  formerly  it  was  usual,  in  these  instances,  where 
several  persons  combined  in  the  prosecution,  to  proceed' by 
writ  of  conspiracy,  but  the  action  on  the  case  is  now  the  usual 

'^  137  remedy. (r)  If,  on  the  other  hand,  the  proceeding  *complain- 
ed  of  were  irregular,  the  remedy  in  general  must  be  trespass  ; 
and,  therefore,  where  a  justice  of  the  peace  maliciously  and 
irregularly  granted  a  warrant  against  a  person  for  felony,  with- 
out any  information  upon  oath,  it  was  decided  that  the  remedy 
against  the  justice  should  have  been,  trespass,  and  not  case  ;(«) 
and  though  case  may  be  supported  for  maliciously  suing  out  a 
commission  of  bankruptcy, (ii)  yet  an  action  of  trespass  is  also 
sustainable,  because  if  the  plaintilT  were  not  subject  to  the 
bankrupt  laws,  the  commissioners  had  no  jurisdiction,  in  which 
case,  tr^'spass  is  always  sustainable  if  in  other  respects  the  in- 
jury were  forcible  and  immediate. (f)  Case  we  have  seen  is 
also   the    proper  remedy,  where   the   right    affected   was  not 


C<7)  Post,  vol.  2.  240.  n.  I.  {t)  Ante,  70. 

(*)  Injuries  arising  from  koepin;^  (w)  3  T.  R.  185.      Boot  r.  Cooper, 

mischievous  animals,  and  from  public  1  T.  K.  535.  3   E?p.  Rep.  135.  Hob. 

nuisances,  ulso   frequently  affect  pev-  200.     Post,  vol.  2.  242.  n.  m. 

so)ial    property  ;    and   on   the    other  (■^^•)  Post,  vol.  2.  242  to  248. 

hand,  many  of  the  wrongs   hereafter  (x)  Post,  vol.  2.  248  to  255. 

enunier.ited  as  aftectinaf  personal  pro-  Q/)  2  "Wils.  302. 

perty,-   may  also  affect   persons,      as  (-)   1  Saund.  228.  230.  n.  4. 

negligence    in  ri<iing  horses,  and  dri-  («)  2  T.  R.  225. 

ving  carriages,  &:c.  {h)  1  "Wils.  l45. 

(r)  Ante,  TO.  (c)    2  Wils.   382.-    384.       Cullen's 

(•5)  Ante,  125,  6.  Bankrupt  Law,  412,  413, 


OF  THE  FORM  OF  ACTION.  l37 

tangible,  and  consequently  could  not  be  affected  by  force,  as  j.Ontkecasp, 
i-eputation  and  health,  the  injuries  to  which  are  always  reme- 
diable by  action  on  the  case,  as  libels,  ox  verbal  slander  -,{(1)  it 
is  also  the  only  remedy  against  sheriffs,  justices,  or  other  offi- 
cers acting  ministerially  and  not  judiciully,(£')  for  refusing 
bail,(/)  or  to  receive  an  examination  upon  the  statute  of  hue 
and  cry,  &c.(,§-)  and  case  lies  against  surgeons,  agents,  Sec.  for 
improper  treatment,  or  for  want  of  skill  or  care,  though  as- 
sumfisit  is  also  sustainable. (/«) 

Actions  for  injuries  to  the  relative  rights  of  persons,  as  for  To  persons 
•■  ^  .  .  ,        relative '.V. 

criminal    conversation,  seducmg    *or    harbouring    wives,    de-  ^    log 

bauchingof  daughters,  enticing  away  or  harbouring  apprentices 
or  servants,  are  properly  in  case  ;(0  though  it  is  usual  in  de- 
clarations for  criminal  conversation  to  state  the  injury  to  have 
been  committed  vi  et  armis,  and  contra  Jiaceni  ;  and  where  the 
action  is  for  an  injury  really  committed  with  force,  as  by 
menacing,  beating,  or  imprisoning  wives,  daughters,  and  ser- 
vants, it  is  most  proper  to  declare  in  trespass.(A) 

For  injuries  to  personal  property  not  committed  with  force.  To    pei^sonal 
or  not  immediate,(/)  or  where  the  plaintiff  s  right  thereto  is  in  tbi-  breach  of 
reversion,(/«)  case  is  the  proper  remedy.     It  lies  against  attor-  ^""^i"^'^^ 
nies  or  other  agents  for  neglect  in  the  conduct  of  a  c^.use,  or 
other   business,  or   for  not  accounting  for  monies,  8cc.  though 
it  has  been  moi*e  usual  to  declare  against  them  in  ussumfi&it  :{ii) 
and  though  we  have  seen  that  assumpsit  is  the  usual   remedy 
for  neglect  against  bailees  ;(o)    as  against    carriers,    wharfin- 
gers, and  others,  having  the  use  or  care  of  personal  property; 
yet  case  is  frequently  a  preferable  remedy,  as  where  it  is  doubt- 
ful how  many  persons  ought  to  be  sued,  when,  by  declaring  in 
ctise,  a  plea  in   abatement  for  non-joinder  is  avoided,  and  the 


{(1)  Post,  vol.  2.  25:>  to  205.  ent  precedents,  post,   vol.  2.  265  to 

(e)  Com.  Dig.  Action  Case.      Mfs-  271. 

feasance,    A.  1.  kc.  (A?)   See  the  precedents,  post,  toL 

(/)  2Saund.Cl.c.  d.      --^  B.  Sc  P.  2.37410  378. 

?5l.  (/)  Ante,  122. 

(5)  1  Leon.  32,3,  4.  (w)  7  T.  R.  9- 

(A)     8  East,  348.     1H.B1.1G1.    2  (n)    6  Eastj  333.     1  New  Rep.  4S. 

AVils.    339.       3  Bl.  Com.  122.     Reg.  Post,  vol.  2.  96  to  270,  71. 

Brev.  105.  (o)  Ante,  9«.     Post,  vol  2.  108  to 

(0  Sl'C  the  reasons  and  the  difff-.r-  293 


138  OF  THE  FOllM  OF  ACTION. 

I.  (Jntliccasr.  joinder  of  too  many  defendants  is  no  ground  of  nonsuit,  and  if 
there  be  any  evidence  of  a  conversion,  a  count  in  trover  may 

''^  139  be  added  ;(/0  it  is  also  more  usual  to  ^declare  in  case  ai^^ainst  an 
inn-keeper,  than  in  <2s.u^;;06zV.(y)  Fonneriy  case  was  the  usual 
remedy  fur  a  false  warranty,  or  other  misrepresentation  on  the 
sale  of  goods,  8<;c.('')  hut  of  late,  it  is  more  usual  to  declare  in 
ansuni/i&it,  so  as  to  join  the  count  for  money  had  and  receiv- 
ed ;(*)  yet  case  may  still  be  supported,  and  if  there  have  been 
any  actual  fraud,  or  it  be  doubtful  how  many  persons  should  be 
made  defendants,  it  is  tl>e  preferable  form  of  action,  especially 
as  the  sclc7!f.cr,  though  expressly  stated  in  the  declaration,  needs 
not  be  proved  ;(/)  and  for  fiaudulently  representing  a  person  fit 
to  be  tj'usted,  or  for  other  deceit,  Avhere  there  has  been  no  con- 
tract between  the  parties,  case  is  the  only  remedy. (t^) 

We  have  seen  that  trespass  may  be  supported  against  a  per- 
son, even  for  accidentally  driving  his  carriage  against  ano- 
ther's ;(7:')  but  for  the  negligent  driving  of  a  servant,  the  mas- 
ter can  only  be  sued  in  case  ;(.r)  and  even  in  the  former  in- 
stance, if  the  injury  were  really  attributable  to  the  negligence, 
and  not  to  the  wilful  act  of  the  driver,  case  might  be  support- 
ed ;(y)  and  it  is  clearly  the  proper  remedy  for  an  injury  occa- 
sioned by  negligence  in  navigating  ships. (z) 

Wlierc  a  distress  has  been  made  for   rent,  and  there  was  no 

■*  lAO  ^^'^^  ^^^^^^  ^^^  action  of  trespass  or  *case  may  be  supported  on 
the  statute  of  Willium  and  Alary  ;{a)  and  if  the  person  ma- 
king the  distress  turn  the  tenant  out  of  possession,  trespass 
lies  ;(o)  so  where  a  party  taking  a  distress  damage  feasant,  has 
been  guilty  of  any  irregularity,  rendering  him  a  trespasser  ab 
initio  ;(c)  but  in  the  case  of  a  distress  for  rent,  if  it  were  law- 
ful in  its  inception,  a  subsequent  irregularity  will  not  render 
the  party  a   trespasser   ub  i/iitio,  or  subject  him  to  an  action  of 


(/•)    Ante,  I.gS.     3  East,  6'i.  70.—  (.v)     I  Enst,  lOG.     6  T.  R.  C59.     3 

Post,  vol.  '2.  nn  to  '270.  11.  Hi.  44i2.     Post,  vol.  -2.  281. 

(v)  Postj  vol.  2.  273,4,  5.  (»/)  2  New  Rep.  117.     Ante,  127- 

(r)  Dous;.  21.  (;j  8T.  R.  ISS.     3  East,  599.  210. 

(.v)   Post,  vol.  2.  100.  213.     Post,  vol.  2.  283. 

(.')  Post,  vol.  2.  27C.     2  East,  44G.  (a)  Post,  vol.  2.  2S5.  n.  m. 

!ii)  Post,  %-ol.2.  278  to  2.S1.  (6)   1  East,  13'J. 

{■.-■)  Ante,  12i»,  130,      3  East,  503.  (c)    8  Co.  146.      Bac.  Abr.  Tres- 
pass, B 


OF  THE  rORM  OF  ACTION.  140 

trcspa:5S  or  trover  ;(c/)  and  case  is  the  proper  remedy  in  these  I- On  the  ca.or. 
and  most  other  instances  of  irregularity  in  the  taking,  or  sale 
or  disposal  of  a  distress.(e)  This  action  also  lies  for  the  rescue 
or  pound-breach  of  cattle,  or  goods  distrained  for  rent ;(/)  or 
damagt -feasant  ;(.§•)  or  for  the  rescue  of  a  person  arrested  on 
mesne  process  ;(//)  and  against  sheriffs,  Sec.  for  escapes  on 
mesne  or  final  process  ;(/)  or  for  not  arresting  the  debtor  when 
he  had  an  opportunity ;(/:)  and  for  a  false  return  of  non  est  in- 
ventus to  mesne  process  ;(/)  or  of  nulla  b-jua,  to  a  writ  of  Ji. 
fa.{m)  or  for  not  levying  under  it  when  he  had  an  oppor- 
tunity ;(«)  or  for  not  taking  a  replevin  Ijond,  or  for  taking  in- 
sufficient pledges  in  replevin  \{o)  or  for  not  assigning  a  bail- 
bond. (/O  For  an  escape  on  final  process,  it  is  most  advisable 
to  declare   in  debt,  if  the   caption   *of  the  original   defendant  *    141 

can  be  clearly  proved,  because  in  debt,  the  jury  must  give  a 
verdict  for  the  entire  demand  ;(y)  but  if  it  be  doubtful  whether 
a  caption  can  be  proved,  the  declaration  should  be  in  case,  pro- 
ceeding for  the  escape  in  one  count,  and  in  the  second  for  not 
taking  the  defendant  when  the  sheriff"  had  an  opportunity  ;(r) 
and  the  same  observation  applies  when  it  is  doubtful  whether  a 
sheriff"  has  levied  under  a  writ  oi  fieri  facias,  or  where  he  has 
neglected  to  levy  the  whole  amount.  Case  also  lies  for  not  deli- 
vering letters,  Scc.(6)  and  against  a  witness  for  not  obeying  a 
Avrit  of  subpaMia  ;(/)  and  for  infringing  the  copy-right  of  a 
book,  print  or  other  work  ;(«)  and  for  the  infringement  of  a 
patent  ;(7y)  and  for  injuries  to  any  personal  property  in  rever- 
sion, trespass,  or  trover,  cannot  be  supported,  case  being  the 
only  remedy. (x) 

With  respect  to  injuries  to  real  firojierty  corporeal,  where    '^*  i''-"'  l-'i"* 
the  injury  was  immediate  and  committed  on  land.  Sec.  in  the      * 


(d)  11  G.  II.  c.  19.     1  H.  Bl.  13.  (,;)  Id.  305. 

(c)  See  tlie  cases  and  preccdL-nts,  (/>)  I<i.  306  to  311. 

post,  vol.  2.  '284  to  293.  (/j)  Id.  311. 

(/)  Vol.  t>.  293  to  29 r..  ((/)  2  T.  R.  120.     1  .S.iurid.  58.  n.  2. 

(jf)  Id.  296,  to  29/".  (?)  Post,  vol.  2.  147  to  149.  303. 

(h)  Id.  29"  to  299.  (s)  3  ^Vils.  443. 

(0  Id.  299  to  39i  (/)  Doup:.  5;iC.  5f)l. 

(A)  Id.  301.  In)  Post,  vol.  2.  313.  317. 

(/)  Id.  302.  {-,i>)  Id.  317  to  320. 

(m)  Id.  .303.  I.c)  7  T.  R.  9 


141  OF  THE  FORM  OF  ACTION. 

I  On  the  case,  possession  of  the  plaimifir,  the  remedy  is  trespass  ;(;/)  but  for 
?io!if('asance,  as  for  not  carrying  away  tithes  ;(z)  or  where  the 
injury  is  not  immediate  but  consequential,  as  for  placing  a 
spout  near  the  plaintifT's  land,  so  that  water  afterwards  ran 
theieon,  or  for  causing  water  to  run  from  the  defendant's  land 
to  that  of  the  plaintiff  ;Ca)  or  where  the  plaintiff's  property  is 

^  142  only  *in  reversion, (a)  and  not  in  possession,  the  action  should 
be  in  Case.  Thus  it  lies  for  obstructing  light  or  air  through 
ancient  windows  by  any  erection  on  the  adjoining  land  ;(6) 
which  action  may  be  brought  in  the  name  of  the  tenant  in  pos- 
session, or  of  the  pei'son  entitled  to  the  immediate  reversion, 
though  the  form  of  the  declaration  differs  in  the  latter  case  ;(c) 
so  it  lies  for  any  other  nuisance  to  houses  or  lands  in  posses- 
sion ;(rf)  and  for  injuries  to  water-courses  where  the  plaintiff 
is  not  the  owner  of  the  soil,  but  is  merely  entitled  to  the  use 
uf  the  water  ;(f)  and  by  a  reversioner  against  his  tenant  or  a 
stranger,  for  waste  by  cutting  dov.n  trees  not  excepted  in  the 
lease,  or  any  other  act  itijurious  to  the  reversion,  though  the 
i-emcdy  by  the  tenant  against  a  stranger  would  be  trespass  ;(/) 
and  though  assum/i^it  we  have  seen  is  the  usual  remedy  against 
a  tenant  for  not  cultivating  land  according  to  the  course  of  good 
husbandry,  or  for  not  repairing,  &:c.(,^)  yet  for  voluntary  waste, 
and  particularly  where  there  has  been  any  conversion  of  trees 
or  other  property,  case  inay  frequently  be  preferable  ;(/i)  which 
is  also  a  concurrent  remedy  with  covenant  where  there  has  been 
voluntary  waste  •,ri\  and  it  lies  upon  the  custom  of  the  realm, 
against  the  personal  representatives  of  a  rector,  Sec.  at  the  suit 

*■  ]/t.3  of  the  successor  for  dilapidations  ;(A-)  and  for  not  *repairing 
fences,  wherel>y  the  plaintiff's  cattle  escaped  from  his  land,  or 
the  cattle  of  the  defendant  got  into  the  land  of  the  plaintiff ;(/) 
for  the  latter  injury,  however,  the  plaintiff  might  support  tres- 


(ij)  Ante,  122,  3.    I  LiL  Iluym.  188.  {r)  Id.  537  to  344. 

(;)  1  Ltl.  R;iy]ii.  187.  ( /)  Id.  344.     S  East,  190. 

(«)  Ante,  1'2G.     Stra.  634,  5.     l.d.  (g)  Ante,  93.     Post,   vol.  2.    13S. 

Ray m.  1399.     2  Burr.  1114.    Fortcst.  ISS. 

212.  (fi)  Post,  vol.  '2.  34.),  6. 

(fl)  Com.  Di-    Action  Case,  Nui-  (/)  2  Bl.  Kcp.  1111.     '2  Saund.  252, 

sanco,  R.  (A.)  Post,  vol.  2.  346. 

(/.-)  Post,  vol.  2.  33L  (0  1  Sulk.  335.     Post,   vol.  2.  348. 

(c)  Id.  n.  4.  330.  350. 

f  <7)  JW.  331  to  337. 


OF  THE  FORM  OF  ACTION.  143 

pass  or  distrain  the  caltlc  damage  feasant  ;  and  case  is  the  pe-  /•  On  the  case. 
culiar  remedy  for  mmfcaaance,  as  not  currying  awj.y  tiuics.Cwj) 

We  may  remember  that  trespass  cannot  in  general  be  sup- 
ported where  the  matter  afl'ected  is  not  substantial  or  the  cst.ite 
therein  is  incorporeal;  case  therefore  is  the  proper  remedy  for 
disturbance  of  common  of  pasture,  turbary,  or  estovers  ;(?;) 
though  if  the  plaintiff's  cattle  be  chased  off  the  common,  trespass 
maybe  supported  for  such  chasing,  and  that  form  of  action  may 
-in  some  instances  be  advisable  in  order  that  the  right  may  bt 
fully  stated  on  the  record  ;  so  case  lies  for  obstructing  a  pri 
vate  way  ;(o)  or  the  plaintiff's  right  to  use  a  pew,  the  posses- 
sion of  which  is  supposed  to  be  in  the  ordinary,  and  thcrelbre 
trespass  will  not  lie  unless  the  plaintiff  be  actually  turned  out 
of  possession.  (//)  So  case  Ues  for  disturbance,  obstruction,  or 
other  injuries  to  offices,  franchises,  ferries,  markets,  tolls,  or 
for  not  grinding  at  an  ancient  mill,  &c.((/) 

An  action  on  the  case   is   frequently  given   by  the  express 
provision  of  some  statute  to  a  party  aggrieved  •,{!•)  *and  it  has  ^    lA'^i 

been  decided,  that  where  a  navigation  act  empowered  the  com- 
pany to  sue  for  calls.  Sec.  by  action  of  debt  or  on  the  case,  that 
an  action  on  the  case  in  tort  might  be  supported,  though  the 
defendant  were  thereby  deprived  of  the  means  of  availing  him- 
self of  a  set-off ;(;)  and  whenever  a  statute  prohibits  an  injury 
to  an  individual,  or  enacts  that  he  shall  recover  a  penalty  oi 
damages  for  such  injury,  though  the  statute  be  silent  as  tc 
the  form  of  the  remedy,  this  action  may  be  supported  ;(wS 
as  on  the  statute  8  Jiin.  c.  14.  at  the  suit  of  a  landlord,  against 
a  sheriff,  for  taking  goods  under  an  execution,  without  paying  a 
year's  rent  j(7f)  and  on  the  statute   of  M'inton,{x)  at  the  suit  of 


(>;i)  Ante,   124.     Post,  vol.   2.    350  (r)  Com.  Dig.  tit.  Aitiou  upon  Sta- 

'o  35.1.  tute,  A.  F.  and  tit.  Plciwltr,  2.  s.  1.  to 

(n)   Com.  Dij;.   Action    Case,   Dis-  2.  s.  50. 

lurbaiice,  A.   1.     Post,  vol.  2.  o54  to  (?)  "  T.  R.  36. 

J>8.  (7/)  .\iite,  143.  n.  r.     10  Co.  "5.  li. 

(0)  Com.    Dig.   Action   Case,  Dis-  2  Inst.  486.     2Salk.  451.     0  Mod.  20 

lurbance,  A.  2.     Post,  vol.  2.  358.  (^y)  Doiijj.  665. 

(/>)  I  T.  It.  4.30.  (.r)  13  E.lw.  1.  Stat.    2.  c.  1,2.       2 

(<?)  Cqm.   Dij,'.   .\ctioii   Case,   13is-  Saund.  574,  5.     Com.  Dig.  Pluader,  2. 

Uii-bunce,    and     Action    Case,    Is'ui-  s.  1. 
lauce  ;  and  Pobt,  vol.  2.  303. 


144  Ol'  THli  FORM  OF  ACTION. 

T.Onthcca:.'.  a  party  robbed,  against  the  hundred;  or  upon  the  riot  act;ri/) 
or  on  diflercnt  statutes,  rchitivc  to  irretjukiritics  in  nraking  or 
disposing  of  a  distress,  Scc.(z)  in  Avhich  and  other  instances, 
case  may  be  supported  by  implication  ;(a)  and  if  a  statute  give 
a  remedy  in  the  affirmative,  without  a  negative  expressed  or 
impUed,  for  a  matter  which  was  actionable  by  the  common  huv, 
the  party  may  sue  at  common  law,  as  well  as  upon'  the  sta- 
tute,(<i>)  but  in  some  instances  the  <;ommon  law  remedy  is  altered 
by  a  statute,  as  by  the  43  Geo.  1 1 1,  c   141.  which  enacts,  that  in  a^j 

*  145  actions  against  any  *justice  of  the  peace  for  any  conviction,  Ecc. 
which  may  have  been  cjuashcd,  or  for  any  matter  done  by  him 
for  carrying  it  into  efTcct,  the  plaintiff  shall  not  recover  more 
tlian  the  suni  levied  under  the  conviction,  and  2d,  damages,  un- 
less it  be  expressly  alleged  in  the  declaration,  which  shall  be  in 
an  action  on  the  case  only.,  that  such  acts  were  done  nialiciouslv 
and  without  any  reasonable  cause.  We  have  seen  tliat  no  ac- 
tion can  be  supported  by  a  common  informer,  unless  he  be  ex- 
pressly autlioriscd  to  sue.(:) 

"We  may  collect  from  the  preceding  observations,  that  the 
plaintiff  frequently  has  an  election  either  to  proceed  in  an  action 
on  the  case,  or  trespass,  or  a.',sin.'!/usi(.(d)  Tlierc  arc  advanta- 
ges attending  the  adoption  of  an  action  on  tlie  case,  instead  of 
the  other  forms  of  action  ;  thus,  in  an  action  on  the  case  the 
plaintilT  is  in  general  entitled  to  full  costs,  though  he  recover 
less  than  40.?.  danuigcs,  whereas  in  some  aclicns  of  trespass  to 
the  person  or  to  land,  if  the  damages  be  under  406',  the  plain- 
tiff is  not  entitled  to  full  costs  ;(c)  so  by  declaring  in  case  in- 
stead of  assum/isic.)  a  defendant  may  be  precluded  from  availing 
himself  of  his  bankruptcy  and  certiiicate.,(y)  or  of  a  set-off,  or 
of  the  circumstance  of  too  few  or  too  many  persons  being  made  de- 
fendants ;(50  a  count  in  trover  may  also  be  frequently  added  with 
advantage,  and  the  pleadings  being  more  concise  in  this  action, 
are  in  general  less  expensive  than  those  in  the  action  of  tres- 


((/)  9  Geo.  I.  c.   2-2.   s.   ".     3   East,  (6)  Com.  Dig.  Action  in>on  Statute. 

40U.  4,ir.  ('■ 

(r)  Pest,  vol.  2.  '2S4  to  '."J.i.     "  (<)  Ante,  105.     5  East,  313.     ♦ 

(fl)  Or  where  tlie  dt-maiul  is  for  a  (f/)  Com.  Dii^.  Action,  M. 

sum    cerliiin,  or  for  treble  c!amnge.s,  (e)  6  T.  ]i.  VZO. 

&c.    debt    also   may    be    supported.  (/)  C  T.  R.  095. 

..\ntc,  lO.i.     l,d.  lliiym.  0S2.  (V)  7  T.  H.  5G,     i> East,  TO. 


OF  THE  FORM  OF  ACTION.  *145 

|)ass.  On  the  other  hand,  there  are  some  disadvantages  *attend-"  /  On  the  case. 
ing  the  action  on  the  case,  on  account  of  the  generality  ot  the 
pleadings,  and  of  the  circumstance  of  the  general  issue  being 
the  usual  plea,  which  puts  the  plaintiff  on  proof  of  the  whole  of 
the  allegations  in  his  declaration,  and  leaves  the  defendant  at  li- 
berty to  avail  himself  of  any  matter  of  defence  at  the  trial,  with- 
out apprising  the  plaintiff  by  his  plea  of  the  circumstunces  on 
which  it  is  founded.  Thus,  where  cattle  of  the  defendant  have 
trespassed  in  the  plaintiff's  land,  in  consequence  of  the  defend- 
ant's neglect  to  repair  his  fences,  the  plaintiff  has  an  election  to 
proceed  in  case,  or  in  trespass, (/;)  or  to  distrain  ;  if  the  real  da- 
mage exceed  40a'.  so  as  to  carry  full  costs,  an  action  of  trespass 
may  be  advisable  in  preference  to  an  action  on  the  case,  in  order 
that  the  trial  may  be  upon  some  particular  point  in  issue, (z)  nar- 
rowing tlie  evidence  more  than  in  the  action  on  the  case  ;  and  it 
is  not  advisable  to  distrain,  where  the  title  to  the  locua  in  quo 
is  doubtful,  but  the  party  should  proceed  by  action  of  trespass,  or 
on  the  case,(/?.-)  and  the  same  observations  arc  applicable  wisere  a 
right  of  common  is  in  dispute. (/) 

The  declaration  hi  an  action  on  the  case,  ought  not  in  general 
to  state  the  injury  to  have  been  committed  vi  et  armin^  nor  should 
it  conclude  contra  jiaccm  ;{m)  in  which  respects  it  pvincipaily  dif- 
fers from  the  declaration  in  trespass.  In  other  points  the  form  of 
the  declaration  depends  on  the  particular  circumstances  on  which 
the  action  *is  founded,  and  consequently  there  is  greater  variety  in  ^  I47 
this  than  any  other  form  of  action.  The  leading  rules  will  be  sta- 
ted when  we  inquire  into  the  form  of  the  declaration  in  general. 
'jih&pka  in  this  action  is  usually  the  general  issue,  not  guilty  ; 
and  under  it  (except  in  an  action  for  slander  and  a  few  other 
instances)(?j)  any  matter  may  be  given  in  evidence,  but  the 
statute  of  limitations.  The  judgmeht  is,  that  the  plaintiff  re- 
cover a  sum  of  money,  ascertained  by  a  jury,  for  his  damages 
sustained  by  the  committing  of  the  grievances  complained  of, 
and  full  costs  of  suit ;  to  v»iach  the  plaintiff  is  entitled,  although 


(/i)  1  Salk.  358.  {in)  Com.  Dig.  Action  on  Case,  ( 

\i)  2  S.iuiid.  *-'S4.  (1.  3.  4.  A. 

{k)  1  Saund.  340.  e.  n.  Q.  (h)  1  Sauivd   13<5.  a.  1.     Willcs,  20. 

(/)  Id.  ibid. 

Vol.  I.  [  14  ] 


147  *^>F  THE  FORM  Oi   ACTION. 

lAhitheciise.  hc  recover  a  verdict  for  less  than  40s.  damages  ;(o)  unless  the 
jiulye  certify  under  tiie  statute  43  KHz.  c.  6.(//)  a  circumstance 
wiiicli  we  have  already  observed  frequently  renders  tnis  action 
preferable  to  that  of  trespass. 


//.  TROVER 

It.  Trover.  The  action  of  trover  and  cojiversion  was  in  its  origin  an  ac« 
tion  of  trespass  on  the  case,  for  recovery  of  damages  against  a 
person  who  had  found  goods  and  refused  to  deliver  them  on 
demand  to   the  owner,    Imt   converted  tliem  to    his  own  use ; 

*    148  from  which   word  Jindvig.,(^(j)  the  remedy  is  called  *an  action 

of  trover.  The  circumstance  of  the  defendant  not  being  at 
liberty  to  wage  bis  law  in  this  action,  and  the  less  degree  of 
certainty  requisite  in  describing  the  gooils,  gave  it  so  consider- 
able an  advantage  over  the  action  of  detinue  ihat  by  a  fiction 
of  law,  actions  of  trover  were  at  length  permitted  to  be 
brought  against  any  person  who  had  in  his  possession,  by  uny 
means  whatever,  the  person.il  propt-rty  oi  another,  arm  sold 
them  or  used  them  without  the  consent  of  the  ownor.  or  re- 
fused to  deliver  them  wiien  demanded.  The  injury  iits  in  the 
conversion,  which  is  the  gist  of  the  action,  and  tlie  fact  of  the 
finding  or  trover  is  now  immaterial,  and  not  traversable  ;  r) 
and  it  is  tor  the  recovery  of  damages  to  the  value  of  the  thing 
converted,  and  not  the  thing  itself,  which  can  only  be  recover- 
ed by  action  of  detinue  or  replevin. («)  Lord  Mun.Jield  thus 
defined  this  action  :(/)  "•  Inform  it  (i.  e.  the  trover)  is  a  fiction  j 
"  in  substance  it  is  a  remedy  to  recover  the  value  of  personal 
"  chattels  wrongfully  converted  by  another  to  his  own  use  ;  the 
"  form  supposes  that  the  defendant  might  have  come  lawfully 
"  by  it,  and  if  he  did  not,  yet  by  bringing  this  action,  the  plain- 
"  tiff  w^aives  the  trespass  ;  no  damages  are  recoverable  for  the 


(o)    Ante.      6T.  R.  liO.  Tidd's     Rop.  140.  Bull.  N.  P.    32.        3  Wils. 

Prac.  3<1  edit.  880.  3.i6. 

(/i)Tidd,  SrO.  (,s-)  Id.  ibid.     Wdles,   120. 

(7)  Or  troin<er  in  French.  {t)   Cooj)er  v.  (jhilty,    1  Burr.  31; 

(r)    3  Bl.   Com,    102,    3.  I  New     1  lil.  Rep.  %7,  8. 


OF  THE  FORM  OF  ACTION-.  148 

«  act  of  taking  ;  all  must  be  for  the  act  of  converting.     This     II.  Trover. 
*'  is  the  tort  or  mal'Jicium^  and  to  entitle  the  pUuntitf  to  recover, 
«  two  things  are  necessary  :    1st.  Property  in  the  plaintiff;  2dly. 
"  A  wr  )ngful  conversion  by  tlie  *defcndant."  We  will  consider  *    149 

tbis  action  with  reference,  1st.  To  the  thing  converted  ;  2diy. 
The  plaintiff 's  right  or  property  therein;  and,  3dly.  The  na- 
ture of  the  injuiy,  and  by  whom  committed. 

This  action  is  confined  to  the  conversion  of  some  persovMl  1st.  The  pro- 
chaftel,  and  it  does  not  lie  for  injuries  to  land  or  other  real  ^.^^ 
property,  even  by  a  severance  of  a  part  from  the  freehold,  tm- 
less  there  be  also  an  asportation  ;  and  tresp.tss,  or  case  where 
the  interest  in  the  property  is  in  reversion,  are  the  only  re- 
medies.(m)  But  if  after  severance  from  the  freehold,  as  in  the 
case  of  trees,  the  property  severed  be  taken  away,  or  if  coals 
dug  in  a  pit  be  afterwards  thrown  out,  trover  may  be  support- 
ed.(w)  It  lies  for  money,  though  it  be  not  in  a  bag,  or  other- 
wise distinguishable  from  other  coin,  because  the  thing  itself 
is  not  to  be  recovered  in  this  action,  but  inerely  damages  for 
the  conversion, (-r)  and  where  money  has  been  paid  by  a  debt- 
or, in  contemplation  of  his  bankruptcy,  by  way  of  fraudulent 
preference  to  his  creditor,  the  assignees  should  proceed  for  the 
recovery  thereof  in  trover,  or  by  bill  in  equity,  and  not  by 
action  of  assumfisit^  for  money  had  and  received,  because  by 
adopting  the  latter  form  of  action,  they  might  enable  the  de- 
fendant to  avail  himself  of  his  original  debt  as  a  set-off  ;(i/)  and 
*the  same  observation  applies  where  the  defendant  has  convert-  ^  150 
ed  the  produce  of  a  bill.  Sec.  and  has  become  bankrupt,  and  ob- 
tained his  certificate  :(z)  in  other  respects,  trover  in  general 
lies  for  the  conversion  of  any  personal  property  in  which  the 
plaintiff  has  a  general  or  special  property  ;(a)  but  it  does  not 
lie  for  the  conversion  of  a  record,  because  a  record  is  not  pri- 


00    Cro.  Jac.  129.       2  Mod.  24-V.  (.r)  Viii.  Abr.  Action,  Trover,  K. 

Bull.  N.  P.  44.      Bac.  Abr.  Trover,  Bac.  Abr.  Trovei-,  U. 

B.      4T.  U.  504,  5.     Co.   Lit.  145.  (j/)   4  T.  R.  'ill.     2  H.  Bl.  135. 

Uullock's  Law  of  Co.sts,  C4  to  90.  (z)  C  T.  It.  695. 

(w)  Xoy,  125.    Sir  W.  Joues,  245.  (a)  For  wiiat  it  lies  in  general,  see 

3  Wils.  336.     7  T.  R.  13.     Com.  Dig.  Com.  Dig.  Action,  Case,  Trover,  C. 

Bicns,  H.     Bac.  Abr.  Trover,  B.—  Bac.   Abr.  Trover,    D.      Vin.   Abr. 

Bull.  N  P.  44.     2  Mod.  2*4  Action,  Trover,'  K.       Bull.  N.  P.  32 

tp  49. 


150  OF  THE  FORM  OF  ACTION. 

11.  Trover,     vate  property  ;  but  it  may  be  supported  for  the  copy  of  a  re- 
cord, which  is  private  property. ((5) 
2dlr.    The  I"    order    to   support   this    action,  the  plaintiff  must  at  the 

f!"'"!''^ '^ '"'  time  of  the  conversion  have  had  ?i  property  in  the  chattel, 
either  general  or  sfiecial  ;{c)  he  must  also  have  had  the  actual 
possession,  or  the  rig-/it  to  immediate  possession  ;  and  therefore 
•where  goods  leased  as  furniture  with  a  house,  Avere  wrongfully 
taken  in  execution  by  the  sheriff,  it  was  decided  that  the  land- 
lord could  not  maintain  trover  against  the  sheriff  pending  the 
lease,  but  should  have  declared  specially  in  an  action  on  the 
case  ;(f/)  but  a  landlord  has  such  an  implied  possession  of  tim- 
ber wrongfully  cut  down  during  a  lease,  as  to  enable  him  to  sup- 
port trover  if  it  be  removed. (f)  The  person  who  has  the  ab- 
soiuie  or  general  property  in  a  personal  chattel  may  support 
this  action,  although  he  has  never  had  the  actual  posses- 
sion ;  for  it  is  a  rule  of  law,  that  the  general  property  of  per- 
*    \S\  sonal  chattels  *creates  a  constructive  possession  ;(y')  and  where 

a  person  has  delivered  goods  to  a  carrier  or  other  bailee,  who 
has  not  the  right  to  withhold  the  possession  fiom  the  general 
owner,  and  so  parted  with  the  actual  possession,  yet  he  may 
maintain  trover  for  a  conversion  by  a  stranger,  for  the  owner 
has  still  the  possession  in  law  against  a  wrongdoer,  and  the 
carrier  or  other  bidlee  is  considered  merely  as  his  servant  ',{g) 
and  an  executor  or  admitiistrator  is  by  legal  construction  pos- 
sessed of  the  goods  of  the  testiitor,  or  intestate  from  the  time 
of  his  death.(/0  So  a  person,  having  a  special  property  in  the 
goods,  may  support  trover  against  a  stranger,  who  takes  thera 
out  of  his  actual  possession,  as  a  sheriEf,(/)  a  carrier,i^^-)  a  fac- 
tor, consignee,  pawnee,  or  trustee,  or  an  agister  of  cattle,  or 
any  other  person  who  is  responsible  over  to  his  principal ;(/) 
but  a  mere  servant  cannot  support  this  action. (w)  In  general 
also  a  special  property  is  sufficient  to  support  trover  against  a 


(5)  H:u-(l!-.  111.  (5-)"T.R.  12.     2  Srmnd.  47.  b. 

(c)    -iSaund.  47.  a.  n.  I.     1  T.  li.  (/')  7^  T.   R.    13.      Latch.  214.     2 

60.  SauiuT.  47.  b.  47.  k. 

(r/)7T.  R.  9.     3  Lev.  209.  (/)  2  SauiKl.  47. 

(e)  7  T.  R.  13.     1  Sauiid.  322.  n.  5.  (A)    t  RoH.  Abr.  4.      1  Ld.  Raym 

Com.  Dig.  tit.  Biens,  IL  276.    Bull.  X.  P.  33. 

(/)  2  Saund.   47.   a.  n.  1.      Bac.  (0  2  Saund.  47.  b. 

Abr.  Ti-oyer,  C.     3  Wils.  33G.  \m)  Owen,  52. 


OF  THE  rORM  OF  ACTION.  15 X 

stranger,  who  has  no  better  title ;  and  the  bare  possession  of    77  Trwer. 
goods  whether  lawfully  obtained  or  not,  \^  firima  facie  evidence 
of  property. («)     In  general  it  has  been  considered  that  in  the 
case  of  a  special  property,  it  n^.ust  have  been  accompanied  Avith 
possession  in  order  to  support  trover  :(o)  *but  where  the   per-  ^^-^ 

son  having  such  special  property,  has  also  an  interest  in  the 
goods,  there  are  exceptions  ;  and,  therefore,  it  was  observed 
by  Eyre,  Ch,  J.(/0  that  it  is  not  true  that  in  cases  of  sjiecicd 
property  the  party  must  once  have  had  possession  in  order  to 
maintain  trover  ;  for  a  factor  to  whom  goods  have  been  con- 
signed and  who  has  never  received  them,  may  maintain  such 
an  action  :  however,  without  such  absolute  or  special  property, 
this  action  cannot  be  maintained ;  therefore,  as  Ave  have  seen, 
trover  cannot  be  supported  by  a  party  in  a  suit  for  a  record,((/) 
nor  can  a  tenant  in  tail  expectant  on  the  determination  of  an 
estate  for  life,  without  impeachment  of  waste,  bring  trover  for 
timber  which  grew  upon  and  was  severed  from  the  estate  ;  for 
such  a  tenant  for  life  has  a  right  to  the  trees  immediately,  when 
ihey  are  cut  down  ;(r)  and  the  plaintiff'  must  not  only  prove  that 
the  goods  which  are  the  subject  of  the  action  are  his  property, 
but  also  that  they  were  so  when  they  were  converted. (&)  In 
the  case  of  a  general  as  well  as  special  property,  the  action  may 
in  most  cases  be  brought  either  by  the  general  or  special  own- 
er, and  judgment  obtained  by  one  is  a  bi.r  to  an  action  by  the 
other.(0 

With  respect  to  the  nature  of  the  iiyjnrij,  we  have  already  :h\w.  The  iii- 
ocen  that  a  conversioii  is  essential  to  the  support  of  this  ac-  •''"'•^ 
tion.(w)     It  would   be   foreign  to  our  present  invjuiry  into  the 
application  *of  the   action  of  trover,  to  state  minutely  the  dif-         ^    153 
lerent    instances    of  conversions.', t:')     'Jhey    may   be    either, 
1st.  By  a  zvroTi^g-ful  ta.{-i/ig  a  personal  chattel;  2(IIy.  By  some 
other  illegal  assumption  of  ownership,  or  by  illegally  zaing-  or 
7nisu'siT!g-  it  ;  or,   3dly.  By  a  ivro7ii^ful  dttcntion. 


(«)  2  Saund.  47.  c.  aud  d.  1  V.a%\,         (r)   1  T.  R.  55. 

->^-  (.v)   2  T.  R.  750. 

(o)  4Ea.st,  214.  (f)   Ante,  48. 

(/O   1  B.  &  P.  4r.     2  Sauad.  47.  d.  \>i)  Ante,  14S.      2  Ssnnd.  47.  c— 

.«  e  I5;ic.  Abr.  Trover,  C.  8  T.  \l.      1  Burr.  .31.     1  Bl.  Rep.  67,  8. 

--■  (-if)    See  the  instances,  Bac.  Abr. 

(7)    Ante,  150.  Trover,  B.     2  Saiind.  47.  r. 


153  OF  THE  FORM  OF  ACTION. 

//.  Trover.  The  ioro7ig'/ul  taking  of  the  goods  of  another  who  has  the 
right  of  immediate  possession  is  of  itself  a  conversion,  and 
whenever  trespass  will  lie  lor  taking  goods  of  the  plaintiff 
wrongfully,  trover  will  also  lie  :(jc)  and  if  goods  be  wrong- 
fully seized  as  a  distress,  though  they  be  not  removed  from 
the  place  in  which  they  were,  yet  trover  may  be  supported, 
because  the  possession  in  point  of  law  is  changed  by  their  be- 
ing seized  as  a  distress. (?/)  In  the  case  of  a  conversion  by 
wrongful  taking,  it  is  not  necessary  to  prove  a  demand  and  re- 
fusal.(z) 

So  the  tvrongful  assumption  of  the  fvrofierty,  and  right  of  dis- 
posing of  goods  may  be  a  conversion  in  itself,  and  render  a  de- 
mand and  refusal  unnecessary. (a)  Thus  a  sale  of  a  ship, 
which  was  afterwards  lost  at  sea,  made  by  the  defendant,  who 
claimed  under  a  defective  conveyance  from  a  trader  before  his 
bankruptcy,  is  a  sufficient  conversion  to  enable  the  assignees 
of  llie  bankrupt  to  maintain  trover,  wiihout  shewing  a  demand 

*    154  ^^^  refusal  :{b)  so  where  a  person  entrusted  with  the  *goods 

of  another,  puts  them  into  the  hands  of  a  third  person,  with- 
out orders,  it  is  a  conversion  :(c)  and  where  a  carrier  by  mis- 
take delivered  goods  to  a  wrong  person,  it  was  decided  that 
trover  might  be  supported,  though  it  would  have  been  other- 
wise had  they  been  lost  by  accident :((/)  and  if  a  person  ille- 
gally make  use  of  a  thing  found  or  delivered  to  him,  it  is  a 
conversion  in  itself  \{e)  or  if  a  bailee,  merely  to  keep  or  carry, 
and  having  no  beneficial  inierest,  misuse  a  chattel  entrusted  to 
him  ;{/)  as  if  a  carrier  draw  out  part  of  the  contents  of  a  ves- 
sel, and  fill  it  with  w.iter,(^)  or  if  a  carrier  or  wharfinger 
break  open  a  box  containing  goods,  or  sell  them.(/j)  So  an 
irreguUuily  in  a  distress  taken  damage  feasant  may  amount  to 
a  conversion, (/)  though  not  in  the  case  of  a   distress  for  rent. 


(x)    3  Wils.  33.      Willes,  55.  3          (</)  Peake,  C.  N.  P.  49.      5  Bitq-. 

Saimd.  47.  k.  2825. 

(?/)  Willes,  56.  (f)  Cro.  Eliz.  213. 

(:)   I  Sid.  1G4.    6  Mod.  212.    Bull.  (/)ld.ibid. 

N.  P.  44.  Is)  I  Stva.  576. 

(a)  5  East,  407.     C  East,  540.  \h)  2  Snlk.  655. 

\b)  5  East,  407.420.  (0  Cro.  Jac.  148.     Bac.  Abr..Tr(»i 

\c)  4T.  W.  2f)4.  260.  Tor,  B, 


OF  THE  FORM  OF  ACTION.  154 

when  trover  cannot  be  supported  :(-()  and  we  have  seen  that  a  11:  Trovei- 
party  will  be  personally  liable  for  a  conversion  to  the  use  of 
another.(0  But  unless  there  be  an  illegal  assumption  of  pro- 
perty, trover  cannot  in  general  be  supported  for  a  mere  non- 
feasance  i{m)  and  therefore  if  a  carrier  or  other  bailee  by  neg- 
ligence lose  goods  entrusted  to  his  care,  the  remedy  in  gene- 
ral must  be  case  or  assumpsit .{n) 

In  the  preceding  instances,  proof  of  the  act  of  the  defend- 
ant is  sufficient  without  evidence  of  a  *demand  and  refusal ;  ^155 
but  where  the  plaintiff  is  not  prepared  to  prove  some  such  ac- 
tual assumption  of  property,  trover  cannot  be  supported  with- 
out proof  of  a  demand  and  refusal,  or  at  least  a  neglect  to  de- 
liver the  goods  ;(oJ  and  where  a  trader,  on  the  eve  of  his  bank- 
ruptcy, made  a  collusive  sale  of  his  goods  to  the  defendant,  it 
was  decided  that  the  assignees  could  not  maintain  trover  witlv 
out  proving  a  demand  and  refusal  ;(/i)  such  a  demand  and  non- 
compliance are  Jirima  facie  evidence  of  a  conversion,  and  will 
induce  a  jury  to  fmd  it,  unless  the  defendant  adduce  evidence 
to  negative  the  presumption,  as  that  he  being  a  carrier,  &c.  lost 
the  goods  by  negligence,  &c.(<7)  When  it  is  doubtful  -whethe? 
the  evidence  will  establish  a  conversion  so  as  to  support  a 
count  in  trover,  a  count  in  case  for  negligence,  Sec.  should  be 
added,  if  there  be  any  proof  to  support  it. (7-)  If  there  have 
been  a  conversion,  trover  lies,  although  the  goods  converted 
be  afterwards  restored  to  the  owner,  for  the  restoration  only 
goes  in  mitigation  of  damages. («) 

In  considering  the  parties  to  actions  in  form  ex  delicto,  we 
have  necessarily  seen  who  are  to  sue  and  be  sued  in  an  action 
of  trover  either  as  between  tenants  in  common,  or  husband  and 
wife,  &c  (/)  and  it  is  only  necessary  here  to  observe,  that  one 
joint-tenant  or  tenant  in  common  or  parcener  cannot  support 


(/r)  1  H.  Bl.  13.  (y)  Bull.  N.  P.  44.    2  Saund.  47.  <. 

(0  Aule,  72.  Piuke's  Law  of  Evidenc.-,  'i98. 

(m)  6  East,  540.  (r)    See  the  precedent,  post,  vol- 

(71)  5  Burr.  28:25.  2  Saund.  47.  e.      2.  270  to  *276. 

FcHkc,  C.  X.  P.  4y.  (ff)    2  Roll.  Abr.  5.  pi.  1.     C  .Mo^. 

(0)  Bull.  N.  P.  44  2  Saund  47  e.     212.      Bull.   N.   P.  46.      Bac.  Abr. 

(/»)  a  H.  Bl.  135.  Trover,  D.  Accord,  A. 

(0  Ante,  6C.  82. 


156*  OF  THE  rORM  OF  ACTION. 

//.  Trover,  trovcv  against  his  co-tenant,  *iinless  the  latter  have  destroyid 
the  chattel. (t') 

We  have  seen  that  for  a  wrongful  taking  in  general,  trover 
is  a  concurrent  remedy  with  trespass  ^{iv)  but  the  converse 
does  not  hold,  for  trover  may  often  be  brought  wiiere  trespass 
cannot ;  as,  where  goods  are  lent  or  delivered  to  another  to 
keep,  and  he  refuse  to  deliver  them  on  demand,  trespass  doeS 
not  lie,  but  the  proper  remedy  is  trover.(.r)  So  where  the 
taking  is  lawful  or  excusable,  trespass  cannot  be  supported, 
and  the  action  must  be  trover ;  as  where  a  sheriff",  after  a  se- 
cret act  of  bankruptcy,  levies  goods  under  an  execution  against 
the  bankrupt. (</) 

The  dcclaraiion(z)  in  this  action  should  state  that  the  plain- 
tiff was  possessed  of  the  goods  (avoiding  repetition  and  un- 
necessary description)  as  of  his  own  Jiro/ierty,  and  that  they 
came  to  the  defendant's  possession  by  gliding  ;  but  the  omis- 
sion of  the  former  words  is  not  material  after  verdict  :(o)  and 
the  finding  is  not  traversable. (6)  As  the  conversion  is  the  gist 
of  the  action,  it  must  necessarily  be  stated  in  the  declaration. 
The  usual  ^dca  is  the  general  issue,  not  guilty  of  the  pre- 
mises :(c)  the  points  relating  to  the  pleadings  in  this  action 
'^    157  vill    be    more  fully  stated  hereafter.     *The  judgment  is   for 

damages  and  full  costs,  to  which  the  plaintiff  is  entiilcd,  though 
he  recover  less  than  40s.  damages,((/)  unless  the  judge  cer- 
tify under  the  statute  of  Elizabeth. {e) 


III  L'EPLEVLy.(a) 

J^r.  JiepU-vm.  Where  goods  have  been  illegally  distrained,  and  in  some 
other  instances,  the  owner  may  regain  possession  by  u  writ  of 
replevin  out  of  chancery,  or  (which  is  now   most  usual)    by 


(r)  Ante,  fi6.     P.iil!.  N.  P.  34.     2  {<i)     Moor,    691.       Hardr.    111.— 

Saund.  47.  f.  g.     4  East,  V2l.  Latch.  214.     2  .Saund.  47.  k. 

(xy)  Auti-,  15,3.  (A;  Ante,  148.     1  Xew  Rep.  140. 

(x)    Sir  t.  Raym.  472.      2  Vent.  (c)  Bull.  N.  P.  48. 

170.                         '  (f/)  3  Kob.  31 .     1  Salk.  208. 

(^)    1  Bun-.   20.      1  T.  R.  475.     2  (e)  43  Eliz.  c.  6. 

Saund.  47.  k.  1.  (<')  From   Ee  and  plegiare.    Co, 

(::)  See  tlie  precLulents,  post,  vol.  Lit.  145.  b. 
2.  323  to  330.  ■ 


OF  THE  FORM  OF  ACTION.  157 

J»laint  or  application  to  the  sheriff,  finding  pledges  to  prosecute  ///.  Ilepkvin- 
an  action  against  the  distrainor  to  try  the  legality  of  the  dis- 
tress ;  and  that  if  the  right  be  determined  against  the  plaintifT, 
he  will  return  the  chattels ;  and  in  the  case  of  a  distress  for 
rent,  also  giving  a  bond,  with  two  sureties,  to  the  same  cf- 
fect.(^) 

The  action  of  replevin,  it  is  said,  is  of  two  sorts,  in  the  de- 
tinetf  or  the  dctitiuit  ;  the  former  where  goods  are  stiii  cietained 
by  the  person  who  took  them,  to  recover  the  value  thereof  and 
damages  ;  and  the  latter,  as  the  word  imports,  when  the  goods 
have  been  delivered  to  the  party .(c)  But  the  former  is  now 
obsolete,  and  according  to  *a  late  case,  tiiere  does  not  appear,  *    158 

in  any  of  the  books,  any  proceeding  in  replevin  which  has  not 
commenced  by  writ,  requiring  the  slieriif  to  cause  the  goods 
of  the  plaintiff  to  be  replevied  to  him,  or  by  the  plaint  in  the 
sherifl''s  court,  the  immediate  process  upon  which,  is  a  pre- 
cept to  replevy  the  goods  of  the  party  levying  the  plaint,  both 
^vhich  modes  of  proceeding  are  in  rem,  i.  e.  to  have  the  goods 
again  ;((/)  and  therefore  replevin  is  not  an  action  m  ithin  the 
statute  24  Geo.ll.  c.  44.  which  protects  constables,  Sec.  acting 
under  a  magistrate's  warrant,  from  any  action,  until  demand 
made  or  left  at  their  usual  place  of  abode,  See.  by  the  party  in- 
tending to  bring  such  action. (e)  In  the  present  action  in  the 
detinuit,  the  plaintiff  can  only  recover  damages  for  the  taking 
of  the  goods,  and  for  the  detention  till  the  time  of  the  replevy, 
and  not  the  value  of  the  goods  themselves. (/)  We  will  con- 
sider this  action  with  reference,  1  st.  To  the  thing  taken  ; 
2dly.  The  property  therein  ;  and  3dly.  The  nature  of  the  in- 
juiy. 

Replevin  can  only  be  supported  for  taking  ^personal  chattel,  ut.  Tlie  prob- 
and for  an  injury  to  matter  affixed  to  the  freehold,  in  which  P^'i-y "^^cted 
case    the   remedy  should  be  trespass,  or,  if  the  interest  be  in 
reversion,  case.(5-) 


(6)  3  Bl.  Com.  147,  8.  (t)  6  East,  283. 

(0    1  Saund.  .347.  b.  n.  2.       Bull.  ( /')    1  Suund.  347.  b.  n.  2.    LutiP. 

N.  P.  52.      Willes,  672.  Com.  Dig-.      1150,51. 
Pleader,  3.  K.  10.  C^^)  4  T.  R.  504 

{il)    Per  Lord  EUenborouffh,  Ch. 

J.     6  East,  28*',, 

Vol.  I.  r  .15  1 


j[58  Oi'   THE  FORM  OF  ACTION. 

JIT.  Tiepier'rii.  i "-"  tjiippun  replevin,  the  plaintiff  must,  at  the  time  of  the 
"i":  ■  .fl-'  I'  caption,  huvc  liLid  cither  the  general  Jiroficrty,  or  a  s/iecial  pro- 
txTcst.  ficrty,  as  the  bailee  *of  eoods,  as  a  pawn,  or  to  be  used  by  him  -Jh) 

and  several  persons  havint?  separate  interests  in  the  property 
distrained,  cannot  join  in  this  action  ;(z)  but  joint-tenants  and  te- 
nants in  conunon  may  and  should  join  ;(/:)  and  if  the  cattle  of  a 
fcjue  sole  1)0  taken,  and  she  afterwards  intermarry,  the  action  of 
replevin  should  be  in  the  name  of  the  husband  alone ;(/)  and 
executors  may  have  replevin  of  a  taking  in  vita  (esiatoris.Qn) 
The  defendant  cannot,  however,  under  the  general  issue  11071 
cc/iil,  dispute  the  plaintiff's  property,  which  must  be  denied  by 
a  special  plca.(«)  If  the  plaintiff  has  not  the  immediate  right 
of  possession,  replevin  cannot  be  supported,  but  the  parly 
must  proceed  by  aclion  on  the  case.(o) 
.'tiilv.  Tlitf  ill-  With  respect  to  the  nature  of  the  injury ,  it  is  said,  that  re- 
plevin lies  only  in  one  instance  of  an  unlawful  taking,  that  of 
a  wrongful  t/Zs^res*  ;(/2)  but  upon  investigation  it  will  appear 
that  this  action  is  not  thus  limited,  and  that  if  goods  be  taken 
illegally,  though  not  as  a  distress,  replevin  may  be  support- 
ed ;((/)  though,  as  it  has.  been  observed,  replevin  is  now  sel- 
dom brought  but  for  distresses  for  rent,  darnage  feasant,  poor'a 
rate,  Scc.(»")  It  may,  certainly,  be  brought  to  try  the  legality  of 
*  160  '^  distress  for  rent,  provided  *there  were  no  sum  whatever  in 
arrear  ;(.s)  but  if  any  sum,  however  small,  were  due,  and  the 
distress  «  ere  for  a  greater  sum,  or  excessive,  or  otherwise  ir- 
regular, the  remedy  must  be  by  action  on  the  case.(;)  Reple- 
vin lies  also  for  an  illegal  distress  taken  damage  feasant  ;  and 
when  the  party  in  possession  of  the  land  has  no  title  thereto, 
this  action  is  preferable  to  trespass  for  seizing  the  cattle,  in  or- 
der to  put  in  issue  the  title  of  the  party  distraining  ;(x')  so  to 


(/;)  Co.  Lit.  145.  b.  Sir  W.  Jones,  1/3,  4.     6  Hen.  VII.  8, 

(/)  Id.  ibid,  ante,  5'2.  'J.      Cro.   Eliz.    824.      Ci-o.    Jac.    50 

{k)  Bull.  N.  P.  53.     ante,  51,  '2.  Com.  Dig.    Acliou,  M.   6.     Co.  Lit. 

^l)  Ante,  02.     Bull.  X.  P.  53.  145.  b. 

(;«)  Bull.  N.  P.  54.  {>■)  Com.  Dig.  Action,  M.  6. 

(;i)  Id.  ibid.  (.v)  5  T.  U.  i248.  n.  c.     3  B.  6c  P 

{0)  7  T.  K.  9.  348. 

\p)  3  Bl.  Com.  146.  (0  Ante,  140. 

■:-,.)  Mn    Abr.    Kti.k\ia,  B.  pi.  2,         0')  1  S;uii.d.  34G.  e.  d.C 


OF  THE  FORM  OF  ACTIO\-.  160 

Iry  the  legality  of  a  distress  for  poor's  rates.(-:')  or  for  sewers'  ^^^  7(ti'>!fvin. 
ratc,(.r)  or  for  a  heriot,  Scc.(y)  But  if  a  superior  court  award 
tin  execution,  it  seems  that  no  replevin  lies  for  the  goods  taken 
by  the  sheriff  by  virtue  of  the  execution  ;  and  if  any  person 
should  pretend  to  take  out  a  replevin,  the  court  would  commit 
him  for  a  contempt  of  their  jurisdiction  ;(r)  and  v.- here  goods 
are  taken  by  way  of  levy,  as  for  a  penally  on  a  conviction  under 
a  statute,  it  is  generally  in  the  nature  of  an  execution,  and  un- 
less replevin  be  granted  by  the  statute,  this  action  will  not  lie, 
the  conviction  being  conclusive,  and  its  legality  not  question- 
able in  replevin  ;{a)  but  where  a  special  inferior  jurisdiction  is 
given  to  justices,  Sec.  and  they  exceed  it,  in  some  cases  reple- 
vin lies. (6) 

*ln  this  action  both  the  plaintiff  and  defendant  are  considered  *    ]f)] 

as  actors,  the  defendant  ia  respect  of  his  having  made  the  dis- 
tress, (being  a  claim  of  right,  and  the  avowry  in  the  nature  of 
a  declaration, )(r)  and  the  plaintiff"  in  respect  of  his  action  ;  on 
■which  ground  principally  the  distinctions  betv.ecn  the  pleadings 
in  this  action  and  in  that  of  trespass  depend. ((/) 

'1  he  declaration  in  this  action,  wiiich  is  local,  reOjUires  cer- 
tainty in  the  description  of  the  place  where  the  distress  was 
taken  ;(e)  and  the  goods  also  must  be  described  v.ith  certainly, 
though  the  same  strictness  docs  not  prevail  as  formerly. (./') 
Where  the  distress  v/as  taken  for  rent,  a  general  avotvry  is 
given  by  statute  ;{g)  but  in  avowries  for  distresses,  taken  da- 
mage feasant.^  more  certainty  is  necessary  than  in  a  justification 
in  trespass,  as  the  defendant  cannot,  in  the  former,  rely  on 
mere  possession  of  the  locus  in  cjuo,  but  must  state  his  title. (/:) 
The  j)laintift' cannot ///fca' /;z  bar  dt-  injuria  generally,  but  must 


{r.-)  3  Wils.  442.     I  Sulk.  20.i.     C-  (6)  Willcs,  072.  n.  b. 

East,  283.     2  151.  Rep.  13.30.     1  Bin-r.  (<)  2  ^\  ils.   WrtO,   1.     1  Sauud.  347 

.-.Sj.     WJlles,  072.  b.  11,7.     Wilks,  221. 

(.r)   f.   T.   K.   .122.        Ifai-dr.    478.  (,/)  1  Sauuil.  347.  c.  n.  .^ 

<.'om.  Uig.  Ploadci',  K.   20.     Willcs,  (e)   .Seethe  precedents,  post,  vol 

072.  n.  b.  2.  304.  n.  c. 

(»/)  Cro.  Jac.  .50.  (  /")  2  Sauml.  74  b. 

(:)  Gilb.  Rcpl.  101.     WiUc-,  072.  (5-)    U   Geo.   II.   c.   19.  s.   22.     2 

II.  b.     2  Lutw.  ll'Jl.    5  Lev.  204.     2  Saund.  284.  c,  n.  3. 

Sti-a.  1184.  (/()  2  R.   k  P.  ,^A9.      1  Sunnd    TC 

(«)     Com.    Dig.    Action,  M.     0  n  .' 
<.\l|l<-'--,  67.1  n  h.     2  XcM-  R.-p.  39" 


J61  OF  THE  FORM  OF  ACTION. 

///.  Replevin,  take  issue  upon  some  particular  allegation  in  the  avo\vry.(f) 
The  statute  of  .4iiue{k)  provides  that  the  plaintiff  in  replevin, 
in  any  court  of  record,  may,  with  leave  of  the  court,  plead  se- 
veral pleas  in  bar,  which  frequently  renders  this  action  prefer- 
able to  trespass  or  any  other  action  in  which  the  plaintiff  can 

*  1G2  have  but  one  replication  *to  each  plea.  The  other  particulars 
of  the  pleadings  in  this  action  will  be  stated  hereafter.  The 
judgment  for  the  plaintiff  is,  that  he  recover  his  damages  on 
occasion  of  the  taking  and  unjustly  detaining  the  cattle,  8cc. 
together  with/z^//  costs  of  suit,  to  which  the  plaintiff  is  entitled, 
though  he  recover  less  than  40s.  damages,  unless  the  judge 
certify,  under  the  43  Eliz.  c.  6,  The  judgment  for  the  avow- 
ant, or  person  making  cognisance,  varies  in  different  cases ;  it 
may  be  at  common  law  Jiro  retorno  habendo^  or  founded  on  the 
statutes  Htn.  VIII.  or  Car.  \\.{z) 


IV.  TRESPASS. 

IV.  Treu'iass.  '^^^  term  tres/iass,  in  its  most  extensive  signification  in- 
cludes every  description  of  wrong^ia)  on  which  account  an  ac- 
tion on  the  case  has  been  usually  called  "  trespass  on  the  case  ;" 
but  technically,  it  signifies  an  injury  committed  vi  et  armis^  the 
meaning  of  which  words  is  expressed  in  Co.  Lit.{b)  The  action 
of  tresjiass  only  lies  for  injuries  committed  with  force,  and  ge- 
nerally only  for  such  as  are  immediate. (c)  Force  we  have 
seen  may  be  either  actual  or  implied  ;  and  the  distinctions 
between  immediate  and  consequential  injuries  have  already 
been  considered. (rf)  The  words  contra  pacem  should  uni- 
formly accompany  the  allegation  of  the  injury,  and  in  some 

-^  163  cases  are  *material  to  the  foundation  of  the  action  ;  thus  an  ac- 
tion of  trespass  to  land  not  within  our  king's  dominions,  can- 
not be  sustained, ((?)  and  it  has  been  doubted  whether  trespass 
for  an  assault  committed  out  of  the  king's  dominions,  as  in 
France,   can  be  supported  ;(/)  though  as  the  fine,  in  strict- 


(0  I  B.  &  p.  70.  (6)  IGI.  b.     3  Rl.  Cora.  118.  39S,  9. 

{k)  4  Anne,  c.  16.  s.  4.  (c)  Ante,  lfi2,  3,  4,  5. 

(:)  See  the  cases  in   I  Saund.  195.  {(l)  Id.  ibid, 

n.  3.     '2  Saund.  286.  u.  5.  («■ )  4  T.  R.  .503.     2  Bl.  Rep.  1058. 

{a)  7  East,  134.  5.    Co.  Lit.  57.  a.  (,/)  Cowp.  176.      '2  Bl.  Rep-  1058, 


OF  THE  FORM  OF  ACTION.  163 

ness  of  law  payable  to  the  king  for  the  violation  of  the  public  ^J-  Trespass. 
peace,  is  no  longer  regardedjC^-)  and  the  words  contra  pactm 
are  not  traversable ;(//)  it  should  seem  that  an  action  for  such 
injury  might  be  supported. 

This  action  cannot  be  sustained  where  the  wrong  complain- 
ed of  was  a  nonfeasance^  as  for  not  carrying  away  tidies,  8cc.(f^: 
or  where  the  matter  affected  was  not  tangible,  and  consequently 
could  not  be  injured  by  force,  as  reputation,  health,  ^c{j)  or 
where  the  right  affected  is  incorporeal,  as  a  right  of  common,  or 
way,  8cc.(/r)  or  where  the  plaintiff's  intcres:  iy  in  reversion,  and 
not  in  possession  ;(/)  or  where  the  injury  was  not  immediate  but 
consequential.(m)  We  will  consider  the  particular  applicabi- 
lity of  this  remedy  to  the  different  injuries  committed  by  force 
to  the  person,  personal  or  real  property  ;  and  as  there  are  material 
distinctions  between  the  remedy  for  these  injuries  when  com- 
mitted, under  colour  of  suit  or  process,  and  Avhen  not,  we  will 
*consider  the  action  of  trespass  under  the  following  heads :  *    164 

I.  When  it  lies  for  injuries  not  committed  under  colour  of 
legal  proceeding,         .         .         .  fiai^es  164  to  IS" 

1.  For  the  parties  own  act,     .          .        /;.  164  to  IRO 

f  1.  Injuries  to  tne  person,    .  //,  164  to  165 

"^    2.  To  personal  property,    .    /z.  165  to  173 

j                [_  3.  To  real  property,       .        /z.  173  to  180 

J  2.  For  the  acts  of  others,  and  of  cattle,  Sec. 

\^                                                                   pages  181  tq  18S 

II.  When  trespass  lies  for  injuries  under  colour  of  legal  pro- 
^ceedings,(«)        -         .         .         .         .        pages  183  to  187 


/.  FOR  LYJURIES  A'OT  LWDER  PROCESS. 

Trespass  is  the  only  remedy  for  a  menace  to  the  plaintiff,  at-  i^t.  Iniurie 
tended  with  consequent  damage, (o)  and  for  an  illeeral  assault,  ^°  *'"^  I'^' 
battery,  and  wounding,  or  imprisonment,  when  not  under  co- 


C?)  3  BI.  Cora.  lis.  .309.  {k)  if  id. 

(/i)  Com.  Dig.  Pluadcr.  3.  M.  S.         (/)  4  T.  4S9.     4  T.  R.  9. 
Vin.  Abr.  Trespass,  Q.  a.  (m)  Ante,  121.  125,  6. 

(/.)  Ante,  12'i.  {n)  3  T.  R.  IS.i. 

(.;)  Ibid.  (o)  3  131.  Cora.  120, 


<; 


164  OF  THE  FORM  OF  ACTION. 

IV.Trespcm.  lour  of  proccss.(/;)  It  lies  also  when  the  battery,  imprison- 
ment, Sec.  Avere  in  the  first  instance  lawful,  but  the  party  by  an 
unnecessary  degree  of  violence  became  a  trespasser,  ab  initio  ;{q) 
and  for  a  wrongful  imprisonment  after  the  process  is  determi- 
ned.(?•)  So  it  lies  for  an  injury  to  the  relative  rights  occasioned 
by  force,  as  for  menacing  tenants,  servants,  8cc.  and  beating, 
wounding,  and  imprisoning  a  wife  or  servant,(s)  whereby  the 
landlord,  master  or  servant,  hath  sustained  a  loss,  though  the 
injury,  the  loss  of  service,  See.  were  consequential,  and  not  im- 

*  165         mediate  ;  and  it  lies  for  *criminal  conversation,(?)  seducing  away 

a  wifef «)  or  servant,(v)  or  for  debauching  the  latter,(TO)  force  be- 
ing implied,  and  the  wife  and  servant  being  considered  as  having 
no  power  to  consent ;  but  in  the  latter  instances,  unless  some 
other  trespass  has  been  committed,  as  an  illegal  entiy  into  the 
plaintiff's  house,  which  it  may  be  advisable  to  join  in  the  same 
action,  it  seems  more  proper  to  declare  in  case.(x) 
ally.  To  per-  The  action  of  trespass  in  its  application  to  injuries  to  fier- 
M)na  proiier-  ^ona/ property,  may  be  considered  with  reference,  1st.  To  the 
nature  of  the  t/iing'  affected  ;  2dly.  The  plaintiff's  r/^'-Af  thereto  ; 
odly.  The  nature  of  the  injia-y  ;  and  4thly.  The  situadon  in  which 
the  defendant  stood,  as  whether  tenant  in  common,  bailee.  Sec. 

.  A\u\Jir,<if,  as  to  the  nuhire  of  the  i/iing  affected:  trespass  lies 
for  taking  or  injuring  all  domicile  and  tame  animals,  as  dogs  and 
cats  ;(?/)  and  all  animals  usually  marketable,  as  parrots,  mon- 
keys, &c.  and  in  which  case  it  is  not  necessary  to  shew  in  the 
pleadings  that  they  have  been  reclaimed  ;(z)  but  in  the  case  of  a 
hawk,  pheasant,  hare,  rabbit,  fish,  or  other  animals y^?"^  naturxy 
and  not  generally  merchandisable,  it  shoidd  be  shewn  in  the 

*  166         pleadings  that  the  same  were  reclaimed  or  dead,  *or  at  least 


{[>)  11  Mod.  180,  ISI.  (,v)  2'r.  U.  If.r,  8.     '20   ^'In.  Abr. 

(7)   Com.    Dig-.    Ticspass,    C.  i.     470.     6  East,  38,".     Post,  vol.  '2.  265. 

Bac.  Abr.  Trespass,  B.  n.  r.  266. 

((•)  Cro.  Jac.  379.  {y)  1  Saund.  84.  n.  2,  3.     F.  X.  B. 

(,s)  9  Co.  113.     10  Co.  130.  86.     Bro.  Ti-esp.  pi.  407.     lie!).  283. 

(0   7  Mod.   81.     2   Salk.    5.i2.  6     Ci-o.  Eliz.  125.     Cro.   Jac.  262.    463. 

East,  3S7.  3  T.  R.  37,  8.     See  Toller's   Law  of 

(?()  F.  N.  B.  89.     6  East,  3S'.  E.xecutors,   1st  edit.  112.  where  the 

(r')    5  T.  R.  361.     7   Mod.   81.  2     particulars  of  personal  property  avc 

Salk.  552.     20  \\r\.  Abr.  47ii.  stated.     Com.  Di?.  Trespass,  A,  I. 

(w)  Bac.  Abr.  Trespass,  C.  1.  3         (r)  Cro.  Jac.  262. 
Wils.  562.  .'51 8,  519.    2  Xew  Rep.  476. 


OF  THE  FORM  OF  ACTION.  '  166 

thai  llie  plaintiff  was  fiosscssed  of  thcm.(a)  So  it  lies  in  jv.  Trenpasa 
some  instances  for  taking  animals ycr<c  war wr^e,  and  not  reclaim- 
ed ;  as  if  a  hare  or  rabbit  be  killed  on  the  land  of  another,  he 
having  a  local  property  ratione  soli  in  such  hare  or  rabbit,  may- 
support  trespass  for  taking  it,  though  the  wrongdoer  did  not 
enter  on  the  land -,(6)  and  if  game  be  started  on  the  land  of  .f, 
and  pursued  and  killed  on  the  land  of  B,  j1  may  support  tres- 
pass for  taking  the  hare,  if  he  also  pursued  the  same,  for  by 
the  pursuit  he  prevented  an  abandonment  of  his  local  pro- 
perty ;(c)  the  same  rules  obtain  in  the  case  of  fish.((/)  In  ac- 
tions of  trespass  for  taking  or  killing  animalsyc;-^  wa^wnr  not 
reclaimed,  it  is  advisable  in  pleading  to  state  also  an  entry  on 
the  plaintiff 's  land  •,{e)  and  it  is  said  that  trespass  for  killing- 
rabbits  without  complaining  of  such  entry  cannot  be  support- 
ed.(/) 

Secondly^  with  respect  to  the  plaintiff's  interest  in  the  pro- 
perty affected^  he  must  at  the  time  when  the  injury  was  com- 
mitted, have  had  an  actual  or  a  constructive  possession.{g)  and 
also  a  general  or  qualified  property  therein,  which  may  be  ei- 
ther, 1st.  In  the  case  of  the  absolute  or  genei'al  owner  entitled 
to  immediate  possession  ;  2dly.  The  qualified  *owner  cou-  ^  ,  ^„ 
pled  with  an  interest,  and  also  entitled  to  immediate  posses- 
sion ;(A)  odly.  A  bailee  with  a  mere  naked  authority,  unaccom- 
panied with  any  interest  except  as  to  remuneration  for  trouble. 
Sec.  but  who  is  in  actual  possession;  or,  4thly.  Actual  posses- 
sion, though  without  the  consent  of  the  real  owner  and  even 
adverse. 

In  the^rs^  instance,  the  person  who  has  the  absolute  or  ge- 
neral property,  may  support  this  action,  although  he  has  never 


(«)    Bac.    A1)r.  Trespass,  1.     Cro.  {d)  Cro.  Car.  554. 

Jac.  -2(,±    1  L(l.  Kaym.  '251.   I  Vcntr.  (f)  43  Edw.  III.   p.  24.  2.     1  Ld. 

12'i.     Dyer,  .-500.   b.     Cro.  Car.   554.  Kaym.   250.     H   Mod.    74.     2  Salk. 

Bac.    Ahr.  Trespass,  E.   1.  and  title  55C.     Cro.  Car.  554.    F.  N.  B.  8C,  8'. 

Trover,  D.     Toiler,  113.  M.  n.  a.  A. 

(6)  2  Salk.  550.     1  Ld.  Raym.  251.  (/)  43  Edw.  111.  p.  24.  2.  F.  X.  B. 

Godb.  12.3.     F.   N.  B.  Sr.     11   Mod.  8'.  A.  c.    Cro.  Car.  553,  4. 

74.  (iO  1  'i'-  ^  ^80.     4  T.  R.  490.     7 
(t)  Godb.  123.    Salk.  556.  11  Mod.  T.  R.  9. 

75.  Bac.   Abr.   Trespass,   E.     Tro-  (/<)  Ante,   150,5.1.     I   B   k  P  \A 
ver,  D.     Bum's  Jus.  tit.  Game,  III  7  T.  R.  0 

vol.  2.  3SS.  as  to  pigeons. 


J67  OF  THE  FORM  OF  ACTION. 

IF.  Trespass:  had  the  actual  possession,  or  although  he  has  parted  with  his 
possessiou  to  a  carrier,  servant,  &c.  giving  him  only  a  bare  au- 
thori!:y  to  carry  or  keep,  Sec.  not  coupled  with  an  interest  in  the 
thing,(?)  it  being  a  rule  of  law  that  the  general  property  of  per- 
sonal chattels  Jirima  facie,  draws  to  it  the  possession, (/r)  and 
this  rule  holds  by  relation,  as  in  case  of  executors  and  adminis- 
trators, Sec.  who  may  support  trespass  for  an  injury  to  personal 
property  cotriinitted  after  the  death  of  the  testator,  or  intestate, 
and  before  j:;  obate  or  administration  ;(/)  so  may  a  legatee  after 
the  executor  iaas  assented  to  the  legacy,  for  a  trespass  commit- 
ted before  such  assent. (w)  But  if  the  general  owner  part  with 
his  possession,  and  the  bailee  have  a  right  to  use  the  thing,  the 
inference  of  possession  is  rebutted,  and  the  right  of  possession 
being  in  reversion,  the  general  owner  cannot  support  trespass, 
but  only  an  action  on  the  case,  for  an  injury  done  by  a  stranger 

*   168  while  the   *bailee*s  right  continued.(n)     Nor  can  the  general 

owner  in  such  case  support  this  action  even  against  such  bailee 
for  a  mere  abuse,  though  if  a  bailee  destroy  the  thing,  trespass 
may  be  supported  if  the  injury  were  forcible. 

In  the  second  case  also,  that  of  the  bailee  who  has  an  autho- 
rity coupled  with  an  interest,  trespass  may  perhaps  be  support- 
ed though  he  never  had  actual  possession,  for  any  injury  done 
during  his  interest  ;(o)  as  in  the  case  of  a  factor,  or  consignee 
of  goods,  in  which  he  has  an  interest  in  respect  of  his  commis- 
sion, hcXji) 

In  the  i/iird  instance,  that  of  a  bailee,  &c.  with  a  mere  naked 
authority,  coupled  only  with  an  interest  as  to  remuneration,  he 
may  also  support  this  action  for  any  injury  done  while  he  was  in 
the  actual  possession  of  the  thing,  as  a  carrier,  factor,  pawnee, 
a  sheriff,  UcXg)  but  it  is  otherwise  in  the  case  of  a  mere  ser- 
vant. (?) 


(0  7  T.  R.  12.  (o)  Ante,  151,  2.     I  B.  fee  P.  45.    2 

Ik)  2  Saund.  47.  a.  b.  d.     2  Eulst.  Saund.  47.  d. 

2G8.    7T.  R.  9.     I  T.  R.  480.  (p')  7  T.  R.  359.     1  T.  R.  113.     1 

(0  Id.  ibid.    1  T.  R.  480.  B:ie.  Abr.  H.  Bl.  81.     Bull.   N.  P.  38.     Ante, 

Executors,  H.  1.     2  Saund.  47.  k.  152. 

(m)  Bro.  Ahr.  Trespass,  pi.  25.  (})  2  Saund.  47.  b.     1  Roll.  Abr. 

(?;)  4  T  B.  480.    7  T .  R.  9.    3  Lev.  551. 

2nf|  (r)  Owen,  52.     3  Inst.  108.     2  B) 

Com.  39G.     2  Saund.  47.  b,  c,  d 


OF  'rtlE  FORM  OF  ACTION. 


168 


An  instance  o(  the  fourth  description  is  the  finder  of  any'  ar-  J>'-  Tre^pasn. 
tide,  who  may  maintain  trespass  or  trover  against  any  person 
but  the  real  owner  ;(&)  and  even  a  person  having-  an  illegal  pos- 
session, may  support  this  action  against  any  person  but  the  legal 
owner.(/) 

Assignees  of  a  bankrupt,  though  they  have  a  constructive 
possession  from  the  time  of  the  act  of  *bankrupt(-y  cannot  sup-  *  169 
port  trespass  against  a  sheriff  or  any  other  officer  acting  in  obe- 
dience to  the  process  of  a  court  of  competent  jurisdiction,  for 
seizing  goods  after  a  secret  act  of  bankruptcy,  because  such 
officers  acting  bona  fide  ought  not  for  such  act  to  be  liable  as 
trespassers,  but  ought  to  be  sued  in  trover,  in  wiiich  only  the 
real  value  of  the  goods  can  be  recovered. (zO 

As  to  the  third  point,  the  nature  of  the  injury^  it  may  be  ei- 
ther by  an  unlawful  taking  of  the  personal  chattel,  or  by  abusing 
it  whilst  in  the  possession  of  the  general  owner,  or  of  a  person 
having  a  special  properly  in  it,  as  a  bailee. 

Trespass  is  a  concurrent  remedy  with  trover  for  most  illegal 
takin<^:i.{a)  Thus  even  in  the  case  of  a  distress  for  rent,  where 
there  has  been  an  illegal  taking,  as  for  distraining  when  no  rent 
was  due,  or  taking  implements  of  trade,  or  beasts  of  husbandry, 
when  there  was  sufficiency  of  other  property ;(/)  or  a  hoise 
while  his  rider  was  upon  him  ;(c)  or  if  a  distress  be  made,  the 
outer  door  being  shut,  or  if  the  party  expel  the  tenant,  trespass 
lies;W)  for  the  statute  11  Geo.  II.  c.  I'J.  which  enacts  that  a 
party  distraining  for  rent  shall  not  be  a  trespasser  ab  inilio^(e) 
only  relates  to  irregularities  after  a  lawful  taking. (y) 

This  action  also  lies  though  there  has  been  no  wrongful  in- 
tent ;(^)  as  if  a  sheriff  by  mistake  *take  the  goods  of  a  wrong  -ff    \~li) 
person, (/i)  except  in  the  case  of  a  levy  under  an  execution  after 


(.v)  2  Sannd.  47.  d 

(()  1  E-'ist,  '241.  Cio.  Rliz.  819.  .5 
Co.  24.  (b).  Moore,  Cm,  2.  .3  Wi!s. 
332.  2  Su-a.  T77.  1  S:ilk.  '290.  '2 
Saund.  47.  c. 

(k)  1  T.  R.  480.  1  Sliow.  12.  1 
Lev.  173. 

(fi)  3  Wils.  .I')'', 


(/y)  F.  X.   K.  8S.     4  T.  ]{.  565. 
Bun-.  570. 

((•)  G  T.  R.  1.38.     4  T.  R.  5f<9 

((/)  1  East,  1.59. 

(,)  I  H.  HI.  1.5. 

(/)   1  E.sp.  X.  P.  .382,  .3. 

(?•)  Ante,  129.     3  Luv.   .37. 

(A)  AiiU-,  1.50 


\'oi..    I. 


r  16  1 


]  70  OF  THE  FORM  OF  ACTION. 

jr.  Trespass,  a  secret  act  of  bankruptcy,  when  trover  only  can  be  supported.(»& 
If  th^  slicrifl'  or  a  stranger  illegally  take  the  goods  of  another  in 
execution,  and  sell  and  deliver  them  to  a  third  person,  trespass 
cannot  be  supported  against  the  latter,  beaxuse  they  came  to  him 
witliout  fault  on  his  part  ;(X)  but  if  a  second  trespasser  take  goods 
out  of  the  custody  of  the  first  trespasser,  the  owner  may  support 
trespass  against  such  second  taker,  his  act  not  being  excusa- 
ble.(/)  This  action  may -be  supported  against  a  bailee  who  has  only 
a  bare  authority,  as  if  a  servant  lake  goods  of  his  master  out  of  his 
shop  and  convert  them  ;(?n)  but  not  against  a  bailee  coupled  with 
an  interest  unles  she  destroy  the  chattel ;(")  nor  against  a  joint- 
tenant  or  tenant  in  common  for  merely  taking  away  and  holding 
exclusively  the  property  from  his  co-tenant,(o)  because  each  has 
an  interest  in  the  whole  and  a  right  to  dispose  thereof ;(/?)  but  if 
the  thing  be  destroyed^  trespass  lies,(9)  and  case  may  be  support- 
ed for  injuring  the  thing. (r)  A  bailee  of  a  chutiel  for  a  certain 
time  ( ()ii])ledA\  ith  an  interest,  may  support  this  action  against  the 
bailor  for  takingit  aw.iy  before  the  time,(5)  and  it  lies  though  after 

^    171  ^^^^  illegal  taking  the  *gGods  be  restored. (0  When  the  taking  is 

unlawful,  cither  the  general  owner  or  the  bailee,  if  answerable 
over,  may  support  trespass,  but  a  recovery  by  one  is  a  bar  to  an 
action  by  the  other  ;(u)  and  it  will  not  lie  for  a  refusal  to  deliver 
■when  the  first  taking  was  lawful,  trover  or  detinue  being  in  such 
case  the  only  remedies. (lO  * 

So  trespass  lies  for  any  immediate  injury  to  personal  property 
occasioned  by  actual  or  implied  force,  though  the  wrongdoer 
might  not  take  away  or  dispose  of  the  chattel,  as  for  shooting 
or  beating  a  dog  or  other  live  animal,  or  for  hunting  or  chasing 


CO  1  T.  R.  480.  Ante,  130.  168,  9.  Lit.  200.  a.      Cowp.  217.    4  East,  121. 

(A)  2  Roll.   Abr.   556.  pi.  50.  Bro.  (y)  Co.  Lit.  200.  a.     Ante. 

Abr.  Trespass,  pi.  48.  (r)  8  T.  R.  145.     1  Ld.  Kaym.  737. 

(0  Sid.  438.  (s)  Godb.  173.     F.  N.  B.  86.  n.  a. 

("0  1  Leon.  87.     Cra  Eliz.  781.     5  (t)  Ante,  155.  Bro.  Abr.  Trespass, 

Co.  13.  b.  pi.  221.     2  Roll.  Abr.  569.  pi.  3.  6. 

(n)  Ante,  154.  Post.  (m)  2Saund.  47.  e.     Bro.  Trespass, 

(o)   1    T.   R.   658.     Cowp.  430.     2  67.     2  Roll.  Abr.  569.  P.     Ante,  152. 

Siiiuid.,  47.  g.  (t-)  Sir  T.  Raym.  472.  2  Ventr.  170, 

(p)  1  Lev.  29.    8  T.  R.  145.     Co.  2  Saund.  47.  k. 


OF  THE  FORM  OF  ACTION.  171 

Bheep,  SccCw)  or  for  mixing  water  with  wine. (a:*)     But  it  is  IV.  Trespass. 
said  that  for  a  mere  battery  of  a  horse  not  accompanied  with 
special  damage,  no  action  can  be  supported.(t/) 

It  is  said  that  if  a  bailee  of  a  beast,  See.  kill  it,  trespass  can- 
not be  supported  but  only  case,  because  a  general  confidence 
has  been  reposed  in  him  ;{z)  but  this  appears  to  be  erroneous, 
for  though  the  act  may  not  render  the  party  a  trespasser  al) 
iniiio.^  yet  he  maybe  considered  as  a  trespasser  for  the  wrongful 
act  itself  ;(q)  so  case,(6)  or  assumpsit  for  a  breach  of  the  im- 
plied contract  may  be  supported  ;(c)  and  it  seems  clear  that  if 
a  *person  be  bailee,  though  coupled  with  a  beneficial  interest,  ^  1/2 
as  of  sheep  to  feed  his  land,  or  of  oxen  to  plough  it,(rf)  and  he 
kill  or  destroy  them,  trespass  lies,  because  his  interest  therein 
is  thereby  determined,  the  same  as  when  a  tenant  at  will  cuts 
down  trees. C^)  So  one  joint-tenant  or  tenant  in  common  may 
support  trespass  against  his  co-tenant  when  the  chattel  is  de- 
stroyecl,  and  even  consider  the  defendant  as  guilty  of  entering 
the  dove-cote,  the  fishery,  &c.  and  taking  away  the  thing ;(/") 
but  if  the  thing  be  not  destroyed,  trespass  does' not  lie  against  a 
bailee  coupled  with  an  interest,  for  abusing  the  chattel, (§■)  be- 
cause an  interest  and  the  right  of  possession  still  continues  in 
the  bailee,  and  a  general  owner  has  no  immediate  right  of  pos- 
session at  the  time  the  injury  was  committed,  and  trespass  can- 
not be  supported  even  against  a  stranger  unless  there  be  an  im- 
mediate right  of  possession. (A)  Trespass  will  not  lie  for  a  loss 
or  injury  occasioned  by  a  bailee's  negligence,  because  it  does 
not  lie  for  any  no7ifcasancc.{i) 

In  some  instances  trespass  may  also  be  supported  for  an  in- 

ijk 

jury  committed  to  personal  property  whilst  in  the  lawT^ul  adverse 


(w)   Barne5,   45'2.       3  T.   R.   37.  (c)  Ci-o.  Eliz.  777.  TSi. 

Hob.  283.     3  Bl.  Com.  153.  (</)  Co.  Lit.  57.  a.     Cro.  Eliz.  784. 

(x)  F.N.  B.  SS.  (e)  7  T.   R,    11.     Co.   Lit.    57.  a 

(w)  2Sti-a.   87i.     Quxi-e,   Barnes,  Cro.  Eliz.  784.     5  Co.  13.  b.     11   Co 

45-2.  82.  a.     Dyer,  121.  b.  pi.  17. 

(t)    Bac.     Abr.  Trespass,    G.    1.  (/)  Co.  Lit.  200.   a.   b.     2  Sauu^I 

Moore,  245.  47.  b.  g.    8  T.  R.  146. 

(a)  Co.  Lit.  57.  a.     Cro.  Eliz.  777.  (^)  2  Saund.  47.  g.       ... 

784.     5  Co.  13.  b.     Bro.  Trespass,  pi.  {h)  7  T.  R.  9.     4  T.  R.  4S9. 

205.     1  Leon.  87.     11  Co.  82.  *.  (i)  5  Co- l.'J.  b   14  a.     Ante,    134. 

(h)  C»  Lit.  57.  a,  n.  4- 


17'2  ^^  fHE  FORiM  OF  ACTION. 

// .  Tri;.fpasi:.  possession  of  the  wrongdoer,  as  where  he  has  been  guilty  of 
an  abuse  which  renders  him  a  trespasser  ab  initio  ;{k)  this  ob- 

*■    173  ^Mns  in  general  whenever  the  person  who  *{irst  acted  with  pro»- 

priely  under  an  authority  or  license  given  by  law  afterwards 
abusco  it,  in  which  case  the  taking  as  well  as  the  real  tortious 
act  may  be  stated  to  be  illegal,  as  in  the  Six  Carpenters'  Case,(0 
or  for  culling  nets  lawfully  taken  damage  fcasant,{m)  or  for 
working  a  horse,  &c.  distrained  ;(?/)  but  in  the  case  of  a  dis- 
tress for  rent,  we  have  seen  that  in  general  a  party  cannot  be- 
come a  trespasser  ab  initi'j,  by  an  irregularity  when  the  caption 
vvas  lawful. 

iully.  To  real       Trespass  is  also  the  proper  remedy  to  recover  damages  for 
properly.  •,,        ,  •  .... 

an  Illegal  entry  upon,  or  an  mimcdiate  mjury  to,  real projierty 

€or[ioreal  in  the  posficssion  of  the  plaintiff.io)  This  remedy  in 
its  application  to  injuries  to  real  propeity,  may  be  considered 
with  reference,  1st.  To  the  nature  of  the  property  affected  ; 
2dly.  To  the  plaintiff's  right  thereto  ;  and  3dly.  To  the  nature 
of  the  injury,  and  by  whom  committed. 

1st.  \Vith  respect  to  the  ?ialure  of  the  real  property  ajfectec^., 
it  must  in  general  be  something  tangible  and  fixed,  as  a  house, 
a  room,  ouihouse,  or  other  buildhigs,  or  land.  Trespass  may 
be  supported  for  an  injm'y  to  land,  though  not  fenced  from  the 
property  of  others,  and  by  the  owner  of  the  soil,  kc.  though 
il  be  a  highway,  or  a  public  bridge,  the  term  close  being  tech- 
nical, and  siiynifying  the  fn^fj'fsr  in  the  soil,  and  not  merely  a 
^.-  \'~l/:\,  close  or  inclosure  in  the  common  *acceptation  of  that  term,(y) 
It  lies  however  temporary  the  plaintiff 's  interest,  and  though  it 
be  merely  in  the  profits  of  the  soil,  as  vesturx  terrx  or  hev' 
bugli  pastiiraX'')  prima  ton6ura,(,s)  or  free  warren,  ficcC^")  if  it 
be  in  exclusion  of  others.  So  where  a  person  contracted  with 
the  owner  of  a  close  for  the  pvu'chase  merely  of  a  growing 


(^)  D:ic.  Abr.  Trespass,  B.  where        (9)  Doc.  &  Stud.  JO.     7  Easf,  207. 

thi-  (loclriae   of  a  p:\riy  becoiuins;  a'  2  Stra.  1004.      6  East,  154.       1  Burr. 

trespasser  ab  initio  is  observed  upon.  133. 

(/)  8  Co.  146.  b.  (r)  Co.  Lit.  4.  h.     5   E.-ist,  480.     6 

(w)  Cro.  C^r.  2-2S.  East,  606.  609.    Dyer,  285. 1.  40.  Bro. 

(/()  Cro.  Jac.  I4r.     1  T.  R.  12.  Trespass,  pi.  270.  Mocre,  302.  2  Koll. 

(o^    .Burr.    1114.    1556.      5    East,  Abr.  552.  pi.  8.     Palm.  47,     5   T.  B.. 

485.487.   Bac.  Abr.  Trespass,  C.  3.  As  535. 
to  iiumudiate  and  consequeutial  inju-         (.s)  7  East,  200. 
ries,  see  ante,  125  to  12S.  (0  2  Salk.  637 


OF  THE  FORM  OF  ACTION.  I74 

crop  of  grass  there,  it  was  decided  that  the  purchaser  had  such  if.  Trefipasn. 
an  exclusive  possession  of  the  close,  though  for  alimited  pur- 
pose, that  he  might  maintain  trespass  giiare  clausum  /regit 
against  any  person  entering  the  close,  and  taking  the  grass  even 
with  the  assent  of  the  owner  ;(u)  so  it  lies  for  a  trespass  on  a 
portion  of  a  common  field  after  an  allotment,  authorising  the 
feeding  the  same  only  for  a  certain  lime  ;(iy)  so  a  person  having 
an  exclusive  right  to  dig  turves  or  coais.  See,  may  support  tres- 
pass quare  claiisum  frtgit  against  another  for  digging  and  taking 
away  turves,  &c.  therein,  though  others  had  common  of  pas- 
ture over  the  land  ^yx)  and  if  J  5  agree  with  the  owner  of  the  » 
soil,  to  plough  and  sow  it,  and  to  give  him  (the  owner)  half 
the  profits,  J  S  may  support  trespass  quare  clausum  /regit 
against  a  stranger,  for  treading  down  the  corn.(z/)  But  unless 
the  plaintiff"  have  an  exclusive  *interest,  case  is  the  only  re-  *  17'5 
medy,  as  if  he  had  only  a  profit  a  Jircndre  as  a  right  of  com- 
mon of  pasture  or  common  of  piscary  ;(z)  and  because  the 
plaintiff  hath  not  the  exclusive  possession  of  a  pew,  trespass 
cannot  be  supported  even  against  a  stranger  for  entering  it  ;(o) 
but  the  parson  may  support  trespass  against  a  person  preach- 
ing in  a  church  without  his  leave. (6) 

This  action  also  lies  for  an  injury  to  the  plaintiff's  land 
covered  with  water,  but  if  the  interest  be  merely  in  the  water, 
case  is  the  only  remedy  ;(c)  and  when  the  trespass  is  in  the 
plaintiff's  river,  pond.  Sec.  it  is  to  be  described  as  an  entry  on 
the  plaintiff's  close  or  land  covered  with  water  :(rf)  or  it  may 
be  for  a  pool,(e)  or  that  the  defendant  broke  and  entered  the 
several  fishery  of  the  plaintiff,  Sec.  and  fished  therein  for  fish ; 
but  it  is  disputed  whether  it  lies  for  fishing  in  a  free  fish^ 
ery.(/) 


(«)  6  East,  rm.  (o)  T.  R.  330. 

(-rf)  Cro.  Kliz.  4'21.     5  T.  R.  335.  (/j)  12  .Mod.  420.  433. 

(x)  3  Bun-.  1825.  15Gl),   1,    2.     6  (t)  Yeiv.  143. 

Ea.sl,  6(»0.  (f/)  Co.  Lit.  4.  b.     Yelv.  143. 

(«)  Hull.  N.  P.   85.     4  Burr.  1827.  (e)  Yelv.  143.     Co.  Lit.  5.  a.  h. 

Co.  Lit.  4.  b.    Hut  see  Cro.  Eliz.   143.  (/)  2  S^lk.  637.     Co.  Lit.   12G.  b. 

and  3  Leon.  213.  note  7  to  page  122.  a.      Co.  Lit.  4.  b. 

(:)   Cro.  Eliz.  421.      Burr.    1827.  I'".  N.  B.  88.  G.      2  Bl.   Com,  4<^     'J 

Sal k..  637.     Bro.  Trespass,  pi.  174.     2  H.  Bl.  182.     Cro,  Car.  ?5-i. 
Roll.  552.  n.  pi.  S.     .Staudiug  place,  C 
Bast,  I'JO, 


175  OF  THE  FORM  OF  ACTION. 

!V.  Treapass.  2dly.  With  respect  to  the  plaintiff's  right  or  interest  in  the 
property  affected,  we  have  given  it  a  partial  consideration  in 
the  preceding  pages.(g")  The  gist  of  this  action  is  the  injury 
to  the  possession,  and  unless,  at  the  time  the  injury  was  com- 
mitted, the  plaintiff  was   in  actual  possession,  trespass  cannot 

'^  176  t)e  supported,(A)  and  though  *the  title  may  come  in  question, 
yet  it  is  not  essential  to  the  action  that  it  5hould.(z)  There- 
lore  a  landlord  cannot,  during  a  subsisting  lease,  support 
trespass,  but  the  action  of  trespass  must  be  in  the  name  of  the 
tenant,  or  the  landlord  must  proceed  in  case,  unless  the  injury 
was  committed  to  trees  or  other  property  excepted  in  the  lease, 
when  the  latter  may  support  trespass  (juarc  clausum  fregit.^k) 
Any  possession  is  sufficient  against  a  wrongdoer  or  a  person 
who  cannot  make  out  a  title /2r/wayaae  entitling  him  to  the 
possession. (/)  It  therefore  follows  that  a  tenant  for  years,(OT) 
a  lessee  at  will,(?j)  and  a  tenant  at  sufferance, Co)  may  support 
this  action  against  a  stranger  or  even  against  his  landlord,  un- 
less a  right  of  entry  be  expressly  or  impliedly  resei'ved.(/j) 

There  is  a  nvaterial  distinction  between  personal  and  real 
property,  as  to  the  right  of  the  owner :  in  the  first  case  we 
have  seen  that  the  general  property  draws  to  it  the  possession, 
sufficient  to  enable  the  owner  to  support  trespass,  though  he 
has  never  been  in  possession  ;(7)  but  in  the  case  of  land  and 
other  real  property,  there  is  no  such  constructive  possession, 
and  unless  the  pLinliff  had   the  actual  possessio7i   at  the  time 

■*  177  when  the  *injury  was  committed,  he  cannot  support  this  ac- 
tion.(r)  Thus,  before  entry  and  actual  possession,  a  person 
cannot  maintain  trespass  though  he  hath  the  freehold  in  law ; 
as  a  parson  before  induction, Cs)  or  a  conusee  of  a  fine,(/)  or  a 


(^•)  Ante,  17J  to  175.   and   sec   in  (o)     It!,  ibid.  13.   Co.  69.      I  East, 

general  Com.  Dig.  Ti-espsiss,  B.    Vin.  245.  note   (a).     Com.  Dig.  Trespass^ 

Abi-.  Entry,  G.  4.  Trcs^a.s,  H.  B.  1.     1  S:iun«3.  322.  n.  5. 

(//)  5  Easl,  485.  4Sr.  (/))  11  Mod.  209.  Com.  Dig.  Biens, 

(s)  WiUes,  2-21.     1  East,  244.  H.     11  Co.  48. 

{h)  Bro.  ALr.  Trespass,  pi.  55.      1  (y)  Ante,  150,  51.     2  Saund.  4".  a. 

Saund.  322.  ii.  5.    7  T.  R.  13.    8  East,  Bull.  N.  P.  33. 

190.     Bac.  Abr.  Trespass,  c.  3.  (r)  5  East,    485.  487.      Bac.    Abr.. 

(/)  1  Easl,  2-i4.     3    Burr.  1563.  2  Trespass,  C.  3. 

Stra.  1238.     W-lIes,  221.  (s)    Vin.  Abr.  Entry,  G.    4.    and 

(m)  2  Roll.  Abr.  551.     Sid.  347.  Trespass,  S.     Bac.  Abr.  Leases,  M. 

(«)  Id.  ibid.  Plowd.  528. 

(0  2  Lcofl,  147. 


OF  THE  FORM  OF  ACTION. 


177 


purchaser  by  lease  and  release,  (though  the  statute  executes  J^^'-  Trespass. 
the  use,)i.")  or  an  heir,(w)  or  a  devisee  against  an  abator,  or  a 
lessee  for  years  before  entry .(y)  But  a  disseisee  may  have  it 
against  a  disseisor  for  the  disseisin  itself,  because  he  was  then 
in  possession  ;  but  not  for  an  injury  after  the  disseisin. (2)  un- 
til he  hath  gained  possession  by  re-entry,  and  then  he  may  sup- 
port this  action  for  the  intermediate  damage  ;  forafter  the  entry, 
the  law,  by  a  kind  of  jus  /lostliminii,  supposes  the  freehold  to 
have  all  along  continued  in  him  ;(«)  and  after  recovery  in  eject- 
ment, this  action  may  be  supported  for  mesne  profits,  though 
anterior  to  the  time  of  the  demise  in  the  declaration  in  eject- 
ment,(6)  unless  where  a  fine  has  been  levied,  in  which  case 
trespass  cannot  be  supported  for  any  injury  committed  an- 
terior to  the  entry  to  avoid  the  fine.(c)  A  person  hav- 
ing a  mere  incorporeal  right,  as  of  common  of  pasture,  tur- 
bary, 8cc,  cannot  support  trespass  *cjuare  clausurn  f regit  for  *  178 
treading  down  the  grass  growing  upon  the  land  upon  which 
he  has  such  i-ight  of  common,  Sec.  for  although  a  commoner 
has  a  right  to  take  such  grass  by  the  mouths  of  his  common- 
able cattle,  he  is  not  to  be  considered  as  in  possession  of  the 
land  ;(rf)  and  because  a  person  having  right  to  sit  in  a  pew,  has 
not  the  exclusive  possession,  he  cannot  support  trespass  even 
against  a  stranger,  the  possession  of  the  church  being  in  the 
parson.(e)  But  whenever  there  is  an  exclusive  right,  trespass 
may  be  supported,  though  the  party  has  not  the  absolute  right 
to  the  soil  or  the  whole  property  therein, (y)  as  if  a  person 
have  an  exclusive  right  to  cut  turf  and  peat,  he  may  support 
trespass  quare  dausum /regit,  and  for  cutting  the  turf;(,§-)  and 
it  may  be  supported  for  a  trespass  in  a  portion  of  a  common 


(?/)  Carter,  fiG.  A'in.  Abr.  Tres- 
pass, S.  pi.  13,  14.     Noy,  73. 

(w)  Plowfl.  142.     2  Mod.  7. 

(0  2  Mod.  7. 

(j/)  Bac.  Abr.  Leases,  ^I.  Plowd. 
U12. 

(:)  2  Roll.  Abr.  553.  Dyer,  285. 
J.  Bl.  Com.  210. 

(«)  Vin.  Abr.  Trespass,  T.  II 
Co.  51.  a.  3  Bl.  Cora.  210.  2  Roll. 
\\y\:  554.  Rro.  TresjiHSS,  j)!.  35. 
Cro.  Eliz.  540.  Com.  Dig.  Trespass, 
R.  ,5. 


(i)  Run.  F.jcct.  44-2.  2  Burr.  GOr!, 
067.     Peake,  L.  E.  326. 

(c)  7  T.  R.  732,  3.  3  Bl.  Com. 
210,211. 

(f/)  Bro.  Trespass,  pi.  174.  2  Roll. 
Abr.  552.  N.  pi.  8.  P.af.  Abr.  Tres- 
pass, C.  3.  3  Burr.  1825.  Cro.  Eliz. 
421. 

(e)  1  T.  R.  l.iii. 

(/)  Ante,  174.     3  Burr.  1824.    5 
East,  485,  G,  7.     Cro.  Eliz,  421, 
( j)  3  Burr.  1824. 


178  OF  THE  FORM  OF  ACTION. 

jy.  Tre.fass.  field  after  the  allotment  to  the  plaintiff-CA)  If  the  plaintiff 
were  in  possession  of  the  lands,  &c.  at  the  tjmc  when  the  in- 
jury was  committed,  the  circumstance  of  his  having  quitted 
possession  before  the  conimencement  of  the  action,  constitutes 
no  objection. (z) 

With  respect  to  the  nature  of  the  injury  to  real  firoficrty,  we 
have  seen  that  trespass  can  only  be  supported  when  the  injury 
was  committed  with  force  actual  or  implied,  and  immediate.(A:) 

*  179  ^^  *lies,  however  unintentional  the  trespass,  and  though  the  locus 
in  quo  wei'e  unincloscd,  or  the  door  of  the  house  were  open,  if 
the  entry  were  not  for  a  justifiable  purpose  ;(/)  and  even  shooting 
at  and  killing  game  on  another's  land,  though  without  an  ac- 
tual entry,  is  in  law  an  entry  ;(A)  though  in  general  when 
the  injury  is  committed  off  the  plaintiff's  land,  the  remedy 
must  be  case  ;(/)  and  a  mere  nonfrasance,  as  leaving  tithe  on 
land,  we  may  remember  is  not  sufficient  to  support  trespass. (w) 
As  to  the  person  by  and  against  whom  this  action  may  be 
supported,  it  seems  that  actual  possession  is  necessary  to  sup- 
port the  action  ;  and  if  the  right  of  possession  be  in  reversion, 
it  clearly  cannot  be  sustained.  Trespass  lies  against  a  mere 
tenant  at  will  for  pulling  down  a  house,  or  cutting  trees  during 
the  tenancy  at  will,  the  interest  being  thereby  determined  ;(n) 
but  against  a  lessee  for  years,  trespass  for  cutting  down  trees 
does  not  lie,  and  case  in  the  nature  of  waste  is  the  only  remedy, 
xmless  the  trees  were  excepted  in^the  lease  ;(o)  though  if  he 
afterwards  take  the  trees  away,  trespass  or  trover  lies  ;(/?)  and 
if  the  trees  be  excepted  in  the  lease,  and  he  cut  them  down, 
trespass  quare  clausujn  f regit  lies  for  such  cutting,  (y) 

*■    180  *The  proper  remedy  by  one  joint-tenant  or  tenant  in  common 

against  the  other  who  commits  waste  to  the  land  or  other  pro- 


(//)   Cro.    Eliz.  421. '5    East,  480.  (;»)  Ante,  124. 

485,  486,  48r.  (//)  Cro.  Eliz.  784.    5  Co.  13.  b.  11 . 

(/)  Bac.  Abr.  Ti-espass,  C.  3.  Co.  81.  b.  82.  a.     Co.  Lit.  57.  a. 

(/.)  Ante,  122.     As  to  these  iiiju-  (o)  Aleyn,  83.     1  Saund.  32'2.  n.  5. 

rics  in  general,  see  Com.  Dig.  Ti-es-  (/»")  Id.  ibid.     7  T.  K.  13.     4  Co.  (".2. 

pass,  A.  2.     Bac.  Abr.  Trespass,  P.  Vin.  Abr.  Trespass,  S.  pi.  10.  and  tit. 

(/)   Ante,    173.     Eac.   Abr.    Tres-  Trespass. 

pass,  F.    2  Roll.  Abr.  555:  1.  15.  C?)'^^-  Trespass,  pi.   55.  I   Sauad. 

(k)  11  Mod.  74.  130.  522,  n.  3.     Bac.  Abr.  Tresp.tss,  C.  3 

(/)  2  Burr.  1114.    11  ]Mod.  74.  130. 
Autc,  12C. 


OF  THE  FORM  OF  ACTION.  180 

perty,  as  by  cutting  down  trees  unfit  to  be  cut  down,  is  au  ac-  I"^  Trespass. 
tion  on  the  case  as  for  a  misfeasance  ;(r)  but  if  one  tenant  in  com- 
mon disturb  the  other  in  possession,  trespass  quare  claiisianfre- 
git  may  be  supported  ;  as  if  two  be  tenants  in  common  of  a 
folding,  and  one  of  them  by  force  prevent  the  other  from  erect- 
ing hurdles,  Sec. (9)  and  though  trespass  does  not  lie  against  a 
tenant  in  common  for  taking  the  whole  pi'ofits,  yet  if  he  drive 
out  of  the  land  any  of  the  cattle  of  the  other  tenant  in  common, 
or  hinder  him  from  entering  or  occupying  the  land,  an  action 
of  trespass  cjiiare  clausumfngit,  or  an  ejectment,  may  be  sup- 
ported .(^) 

Though  the  entry  were  lawful,  yet  by  a  subsequent  abuse  of 
an  authority  in  law  to  enter,  as  to  distrain.  Sec.  (except  for  rent 
or  poor's  rates,)(7i)  the  party  may  become  a  trespasser  ab  itii- 
tio  iriv^  and  if  an  officer  neglect  to  remove  goods  attached  with- 
ina  reasonable  time  and  continue  in  possession,  his  entry  becomes 
a  trespass  ab  initio  ;{x)  so  in  the  case  of  a  distress  for  rent,  if 
the  party  remain  in  possession  more  than  five  days,(z/)  or  turn 
ihe  plaintiff's  faniiJy  out  of  possession  ;(z)  but  in  case  of  an 
authority  myact  to  enter,  an  *abuse  of  such  authority  will  not  ^    Igl 

in  general  subject  the  party  to  this  action. (c) 

In  the  immediately  preceding  pages  we  have  considered 
when  this  action  may  be  supported  against  a  party  for  his  own 
immediate  act ;  in  some  cases  it  may  be  supported  against  a 
person  for  the  acts  of  another.,  and  of  cattle.,  iJfc.  Thus  a  party 
may  be  sued  in  respect  of  his  previous  consent  or  request  that 
the  trespass  may  be  done  :  as  if  ^  command  or  request  B  to 
beat  C,  or  to  take  his  goods,  or  to  commit  a  trespass  on  his 
land,  and  B  do  it,  this  action  lies  as  well  against  A  as  against 
B  ;{b)  as  if  A  direct  the  sheriff  to  levy  particular  goods,  not  the 


(r)   8  T.  R.  U5.     Com.   Disj.  Es-         (x)  2  1$!.  Rep.  1218. 
tate,  K.  8.  (.")  '-^  ■'^tia-  7\7.     1  11.  Bl.  13. 

(.<!)  Co.  Lit.  200,  b.  (:)  1  East,  139. 

(0  Co.  Lit.  190.   b.     3  Wils.   119.         (a)  Lane,  90.    Bae.  Abr.  Trespass, 

12  Mod.  567.  B.     2  T.  R.  160. 

(m)  1  II.  Bl.  1:5.  {b)  Ante,  67,  68.     2  Bl.  Rep.  1055., 

(7y)   Bac.   Abr.  Trespass,   B.     Six  Salk.    409.      4   Inst.  317.     Bac.  Abr- 

Carpenters'   Case,  8  Co.  146.     2  Bl.  Trespass,  G.  Cora.  Dig.  th.  Trespass, 

Rep.  1218.     Clayt.  44.  C.  1. 

Vol.  I.  [17  ]. 


181  OF  THE  FORM  OF  ACTION. 

IV.  Trespass,  property  of  the  defendant  in  the  £\ction.(c)     Itinay  alsobe  sup- 
ported against  a  person  not  being  an  infant  or  ftme  covert^  who 
(iftevwardu  assents  to  a  trespass  committed  for  his  use  or  bene* 
ljt,(r/)  though  not  so  as  to  subject  him  for  a  forcible  entry  -.{e) 
so  for  taking  goods,  even  to  subject  the  parly  assenting  for 
an  abuse  of  an  authority  in  law  as  a  trespasser  ab  initio  ;(/)  but 
without  such  consent,  trespass  does  not  in  general  lie  ;  as  if 
A  command  his  servant  to  do  a  lawful  act,  as  to  distrain  the 
goods  of  B,  and  be  wrongfully  take  the  goods  of  C,  A  is  not 
liable  ;(5^    the    liability   of  a   sheriff  being  an   exception  ;(/0 
^    182         and  the  mere  acceptance  of  goods  illegally  taken  by  *anothei, 
does  not  always  furnish  evidence  of  an  assent  ;0)  as  if  a  pound- 
keeper  receive  goods  illegally  distrained; (A-)  but  in  these  cases, 
if  the  party  alter  demand  withhold  the   goods,  trover  may  be 
supported  agaiiist  him  ;  and  as  we   have  already  seen,  unless 
there  be  an  actual  consent  to  the  trespass  either  before  or  after 
it  was  committed,  even  a  master  is  not  liable  in  an  action  ot 
trespass  for  the  act  of  his  servant,  though  case  may  be  support- 
ed against  him  in  some  instances,  for  inj\«:ies  in  respect  of 
which  the  servant  is  liable  in  trespass. (/) 

\Vc  have  already  partially  considered  the  liability  of  a  person 
for  the  acts  qf  his  cattleXin)  In  those  cases  in  which  the  de- 
fendant is  not  liable  unless  he  had  notice  of  the  propensity  of 
his  cattle,  as  in  the  instance  of  a  dog  biting  mankind,  sheep, 
&c.  or  an  unruly  bull  doing  some  injury,  the  remedy  is  in  gene- 
ral by  action  on  the  case  :(?.)  so  for  the  consequences  of  bring- 
ing an  unruly  horse  into  an  improper  place. (.0)  But  if  the  ani- 
mal were  natqrally  of  the  propensity  to  do  the  mischief  com- 
plained of,  as  horses  and  cattle  to  trespass  on  land,  though  the 


(c)  2  Roll.  553, 1.  5.  la  (i)  2  Koll.  555,  1.  50. 

\d)  Ante,  67.    Cowp.  475.    3  Wils.  (A:-)  Cowp.  476. 

377.  (0  Ante,  131.  1  East,  106.    2  Roll. 

(0  4  Inst,  317.     Co.   Lit.  180.  b.  11.  553.1.25. 

4.  (w)  Ante,  G9,  70. 

(/)  Lane,  90.  («)  Id.  ibid.     Lutw.  90.     Cro.  Car 

.(5)  3  Wils.  312.  317.     1  East,  108.  25.     Ld.  Raym.  608.  1583.     12  Mod, 

Ante,  6S,  69.  <  333.     Dyer,  25.  pi.  162. 

(A)  Ante,  67J  68.  (0)  Vcntr.  295. 


OF  THE  FORM  OF  ACTION.  X82 

owner  had  no  notice  in  fact  of  their  propensity,  the  remedy  is  ly.  Trespass. 
trespass.(/0 

Trespass  may  also  be  supported  for  an  injury  *committed  by         *    1^3 
'Auimah /tree  naturce  or  notoriously  ferocious,  and  which  have 
not  been  properly  confined. (•:«) 

Jl.   U.yi)E/t  COLOUR  OF  LEGAL  PROCEEDLVGS 

The  application  of  the  action  of  trespass  to  injuries  com- 
mitted under  colour  of  a  legal  proceeding,  may  be  considered 
Under  the  seven  following  heads  : 

First.  In  general,  no  action  whatever  can  be  supported  for 
any  act,  however  erroneous,  if  expressly  sanctioned  by  the  judg- 
ment or  direction  of  one  of  the  superior  courts  at  WestDibi' 
.Iter,  or  even  by  an  inferior  magistrate,  acting  within  the  scope 
of  his  jurisdiction. (-r)  In  the  only  exception  to  this  rule,  that 
of  a  judgment  obtained  by  threats  or  undue  influence,  an  ac- 
tion of  trespass  against  the  person  guilty  of  such  conduct  ap- 
pears to  be  the  proper  remedy  ;(j/)  and  when  in  inferior  courts 
the  error  in  the  pi*oceeding  is  such  as  to  render  it  an  excess  of 
jurisdiction,  trespass  may  be  supported  for  any  thing  done  un- 
der such  proceeding  ;(2)  and  in  case  of  an  error  by  a  mmisterial 
officer,  this  action  may  be  supported,  if  the  injury  complained 
of  was  committed  with  force  and  immediate. (o) 

*Sccojidhj.  When  the  court  has  no  jurisdiction  oxtv  Xhe  sub-  ^    104 

ject  matter,  trespass  is  the  proper  form  of  action  against  all  tho 
parties  for  any  act,  which,  independently  of  the  process,  would 
be  remediable  by  this  action,  or  by  trover,  if  goods  have  been 
taken  ;(6)  and  it  hus  been  decided,  that  when  the  proceedings 


(/))  Ante,  69,   70.      2  Roll.  Abr.  (»/)  1  T.  R.  538.      2  Bl.  Rep.  1055. 

568.  N.  1.15.     3  Bl.  Com.  211.    1  Ld.  (i)      1  East,  64.       Sir  W.  Jones, 

Raym.  608.     1583.    Bac.  Abr.  Tres-  178.      Hob.  6,3.      2  Bulst.  64.      Rep. 

psss,  G.  2.  temp.  Hardw.  62  to  72.     I  Wils.  232. 

(w)  Ante,  70.    Ld.  Raym.  1 583.    3  1  T.  R.  545. 

East,  595,  596.                  '  (u)   1  Ld.  Rayra.  471,    1  Salk.  39^ 

(x)  7  T.  R.  634.  n.  a.     1  Wils.  2*2.  2  T.  R.  225. 

1  T.  R.  5*5     3  Bl.  Rep.  68^  (b)  Hardr.  48;? 


184  OF  THE  FORM  OF  ACTION. 

2V  Trespass,  in  the  court,  having  no  jurisdiction,  are  adopted  by  a  party 
with  ;m  express  malicious  nz^e?!^,  though  there  be  a  demand 
recoverable  elsewhere,  an  action  on  the  case  may  be  support- 
ed ;(c)  or  where  the  party  maliciously  and  unduly  issues  a  se- 
cond Jieri  facias.(jl)  Trespass  is  also  the  proper  remedy, 
where  an  inferior  court  has  jurisdiction  over  the  subject  mat- 
ter, but  is  bound  to  adopt  certain  forms  in  its  proceedings, 
from  which  it  deviates,  and  whereby  the  proceedings  are  ren- 
dered coram  ?ion  judice  ;(e)  but  it  lies  not  for  arresting  a  per- 
son privileged  either  /lersonally  or  localhj,  but  case  is  the  only 
remedy.(/) 

Thirdly.  When  a  court  has  jiu'isdiction,  but  the  proceeding 
is  defective,  as  being  irregular  or  void,  trespass  against  the  at- 
torney and  plaintiff  is  in  general  the  proper  form  of  action  ;{g^ 
and  in  the  case  of  Morgan  and  Hughes,Qi)  it  was  decided,  that 
an  action  on  the  case  could  not  be  sustained  against  a  magistrate 

*■   18v5  ioJ'  issuing  an  irregular    warrant,  *though   maliciously  ;    and 

that  the  action  should  have  been  trespass  ;0)  for  in  general  no 
action  can  be  supported  aguinst  a  magistrate,  for  any  thing 
done  by  him  in  that  capacity  on  the  ground  of  malice  ;{])  and 
if  there  be  an  irregularity,  that  must  be  treated  as  such,  in  an 
action  of  trespass ;  but  with  regard  to  a  plaintiff  issuing  irre- 
gular process,  there  seems  no  reason  why  he  should  not  be  at 
liberty  to  support  an  action  on  the  case,  if  he  had  no  cause  of 
action,  and  proceeded  maliciously  as  well  as  without  founda- 
Uon,(A)  for  it  would  be  allowing  him  to  take  advantage  of  his 
Ovvn  wrong,  to  suffer  him  to  turn  the  plaintiff  round  on  such 
an  objection,  after  the  plaintiff  in  an  action  on  the  case  had 
proved  the  malicious  and  unfounded  conduct  of  the  defendant. 
Fourthly.  When  the  process  has  been  7?iisaji/ilied,  as  when  ji 
or  his  goods  be  taken  upon  process  against  B,  trespass  is  in 


(c)  lOCo.  rf).  a.    2Stra.  993.    Rep.  .srg.     2  Bills t.  6*.      1  Mod  209.     Sir 

temp.  Hardw.  62.  69.         1  Leon.    84.  W.  Jones,  171. 

89.     Hob.  63.     SWils.  345.      2  Wils.  (5)  3  Wiis.  341.   368.   376.     2  BL 

3(>i.  305.     Sed  vide  2  T.  R.  225.  Rep.  845. 

(_d)   Hob.  205,  206.  (A)  2  T.  R.  225. 

(<>)    Sir  W.  Jones,  171.       1  Kast,  (/)  Sec  also  2  Stra.  710. 

61.      Rep.  temp.    Hardw.  71.     Hob.  (.7)  1  T.  R.  545.     1  Wils.  232, 

63.     2  Bulst.  64.  (k)    Sly.    378.      2  Wils.    302.  306- 

(/)   10  Co.  76.  b.      6  Co.  52.  n.     2  Hob.  205.  266. 
Bl  Kep.  ilgg,      Dong.  646.     3  Wils, 


OF  THE  FORM  OF  ACTION.  185 

general  the  only  remedy  ;(/)  or  if  there  be  a  misnomer  in  the  ir.  Trespass. 
process,  though  it  be  executed  on  the  person  or  goods  of  the 
party  against  whom  it  was  in  fact  issued. (»0 

Fifthlif.  When  the  process  of  a  court  has  been  abused^(n) 
trespass  against  the  sheriff  and  his  officer  committing  the  abuse 
is  the  proper  action,  *if  the  conduct  of  the  officer  was  in  the  ^  ]  gg 
first  instance  illegal,  and  an  immediate  injury  to  the  body,  pei'- 
sonal  or  real  property  ;  as  if  the  officer  arrest  out  of  the  she- 
liff's  bailiwick,(o)  or  after  the  return  day  of  the  ■writ.(/i)  or  if 
he  break  open  an  outer  door,  ^c.{q)  so  though  the  conduct  of 
the  officer  wat  in  the  first  instance  lawful,  but  he  abused  his 
authority,  and  thereby  became  a  trespasser  ab  initio  :(r)  and  in 
some  cases,  though  the  abuse  be  merely  a  noriftasance,  tres- 
pass is  the  proper  remedy,  as  if  a  sheriff  neglect  to  return  a 
bailable  la(ica(,U)  or  to  discharge  the  party  out  of  custody 
when  he  ought  to  do  so,  as  for  fees  not  due.(?)  These  rules 
also  hold  as  to  the  ministerial  officers  of  courts  of  inferior  ju- 
risdiction, who  abuse  the  trust  reposed  in  them.  However,  in 
general,  when  the  act  complained  of  consists  of  a  mere  nonfea- 
aance^  as  if  the  sheriff,  or  a  magistrate,  Sec.  improperly  refuse 
bail,  or  to  act,  Avhen  they  should  do  so,  an  action  of  trespass  is  not 
the  proper  remedy,  but  case.(20 

Sixthly.  When  a  ministerial  officer  proceeds  ivithout  ivar- 
rant,  on  the  information  of  another,  trespass,  and  not  case,  is 
the  proper  form  of  action  against  the  informer,  if  the  inlbrma- 
uon  turn  out  unfounded  -/^tj)  and  when  an  officer  proceeds 
"without  warrant  and  without  foundation,  upon  his  own  appre-  H'^  ]^g^ 
hension,  though  there  was  probable  cause,  trespass  is  the  pro- 
per form  of  action  against  him.(^) 

Seiienthiy.  But  no  person  who  acts  upon  a  regular  writ  or 
warrant  can  be  liable  to  this  action,  however  malicious  his  con- 


(/)    Wils.  309.     2B1.  Rep.  833.     1  (s)  Com.  Dig.  tit.  Return,  F.  1. 

Bulst.  149.     -Moor,  45 r.    Hanlr.  32'i.  (f)  1  Wils.  153. 

(ffi)  6  T.  K.  234.     8  East,  528.  (k)    Ante,    137.      3  B.  &   P.  551 

(»)  2  T.  K.  148.  1  Leon.  323.    Ci-o.  Eliz.  196.    3  "\^"ils. 

(o)  Sir  T.  Jones,  214.      2  Bl.  Rep.  342,  343. 

854.  (-.0)  6  T.  R.  31C.     Doujf.  359. 

(/»)  2  Esp.  Rep.  583.  \x)  1  Sulk.  59G.    1  Ld.Raym.  454 

(7)  Cowp.  1.     3  B.  k  P.  223.  2  Stra.  820. 

(;•)   Bac.  Abr.  tit.  Trespass,  B.     2 
Bl.  Rep.  1218 


]87  OF  THE  FORM  OF  ACTION. 

IV.  Trr!)pass.  cluct,  but  case  for  the  malicious  motive  and  proceeding  is  the 
only  form  of  action. (y) 


Readmgs,8{c.  'J'he  declaration  in  this  action  contains  a  concise  statement  of 
the  injury  complained  of,  whether  to  the  person,  personal  or 
real  property,(z)  uiid  should  allege  that  such  injury  was  com- 
niitted  vi  ce  armisyia)  and  contra  /iacvm.{b)  The  general  issue 
is,  not  tjuilty  of  the  trespasses  as  alleged  by  the  plaintiff  i  and 
under  it  few  matters  of  defence  can  be  given  in  evidence,  and 
consequently  the  pleadings  in  this  action  require  much  attention. 
In  an  action  of  trespass  to  the  person,  or  to  real  property,  if 
the  diimages  recovered  by  verdict  be  under  40s.  the  plaintiff 
will  in  general  recover  no  more  cost.-i  than  damages  ;(c)  but 
where  the  injury  is  to  a  personal  chattel,  it  is  otherwise. (f/) 
Ihe  verdict  ■Audjud^rm^ntixve  for  damages  assessed  by  the  jury, 
and  for  the  costs. 


^    jg3  *r.  EJECTME.VT.i*) 

?v  Ejectment.  This  action  lies  for  the  recovery  of  the  possession  of  real 
property,  in  which  the  lessor  of  the  plaintiff  has  the  legal  in- 
terest, and  a  possessory  right  not  barred  by  the  statute  of  limi- 
tations.(r)  Mere  nominal  damages  and  costs  are  recoverable 
in  this  action,  and  in  order  to  complete  the  remedy  for  damages, 
Mhcn  the  possession  has  been  long  detained,  an  action  of  tres- 
pass for  the  me67ie  profns  must  be  brought  after  the  recovery 
^u    ejectment.     This    action  may  be  considered  with  refer- 


(iO  Ante,  136.    ST.  R.  185.    Boot         {d)  Post,  vol. -2.  371.  n.  h. 
V.  Cooper,  I  T.  R.  535.  reported  also         (*)  See  the  History  of  this  action 

in   3  Esp.  Rep.  135.       3  3   &E  P.  2-25.  in  3  Bl.  Com.  SO^.     The  nature  of  it, 

6T.  R.  315.     Hal.  P.  C.  151.  3  Wils.    120.      2  Burr.   66,",   8.     Sel- 

(r)  See  the  precedents,  post,   vol.  wyn,  N.  P.  616  to  674.       Run.  Ejeut- 

-2.  367  to  303.  and  371.  n.  c.  niciit. 

(a)  Post,  vol.  2.  368.  n.  t  (:)  7  T.  R.  47.  50.    2  Biut  G6S.     S 

(/.-)  Id.  ibid.  n.x.  T.  R.  2. 

's)  TiUu's  Frao.  3d  edit,  879,  680 


OF  THE  FORM  OF  ACTION.  18^. 

eiv^e,  first.)  to  the  nature  of  the  property  or  thing  to  be  re-   v.  Ejectment. 
tovered ;  secondly,  the   light  to  such  property  ;  unci,  thirdly, 
to  the  nature  of  the  ouster  or  injury. 

This  action  is  in  general  only  sustainable  for  the  recovery  of  ut.  For  wha^ 

.  .  .         propL-rlv    ii 

the  possession  of  property,  upon  which  an  entry  might  in  point  lies.(t) 
olfact  be  made,  and  of  which  the  sheriff  could  deliver  actual 
possession ;  therefore,  it  is  not  in  general  sustainable  for  the 
recovery  of  property  which  in  legal  consideration  is  not  tangi- 
ble, as  for  an  advowson,  a  rent,  common  in  gross,  or  other  in- 
corporeal hereditament,  or  a  water-course,  8cc.(a)  but  it  lies  for 
common  appendant  or  appurtenant,  if  *demanded  with  the  land  *'    181> 

in  respect  of  which  it  is  claimed,  for  the  sheriff,  by  giving  pos- 
session of  the  land,  gives  possession  of  the  common  ;(/5)  an 
ejectment  also  lies  for  lithe,  by  the  statute  of  32  Hen.  VIII.  c. 
7.  s.  7.(c)  it  is,  therefore,  necessary  to  describe  the  nature  of 
the  property  in  the  pleadings,  and  the  w  ord  "  tenement''  is  too 
general  •,{d)  and  when  common  is  to  be  recovered,  it  must  be 
described  as  appendant  or  appurtenant  ;(e)  and  if  a  water-course 
be  sought  to  be  recovered,  it  must  be  described  as  land  cover- 
ed with  water.(/) 

With  respect  to  the  title,  a  party  having  a  right  of  entry,  2d"iv.  Tlie  C- 
whether  his  title  be  in  fee-simple,  fee-tail,  in  copyhold,  or  for 
life,  or  years,  may  support  an  ejectment ;  but  the  right  of  pos- 
session must  be  of  some  duration,  and  exclusive,  and  therefore, 
an  ejectment  cannot  be  supported  for  a  standing  place,  Stc.  or 
w  here  a  party  has  merely  a  license  to  use  land,  SccC^*) 

The  general  rule  governing  this  aclion  is,  that  the  plaintiff 
must  recover  upon  the  strength  of  his  ciun  title,  and  cannot  of 
course,  in  general,  found  his  claim  upon  the  insufficiency  of  the 


(t)    For   what  an  i-jectmcnt  lies,  (r)    3  Bl.  Com.  20G.       Bull.  X.  P 

aiul  the  clescrii»tion,  see  Kun.  Eject-  99.     2  Saund.  304.  n.  12. 

luent,    121  to   13C.      Selwyii,    N.  P.  (</)  1  East,  4-il.     2  Stta.  S91.  Post; 

022  to  625.     Post,  vol.  2.  394,  395.  vd.  2.  394. 

(«)    3  B!.   Com.  20C.      Yclv.   143.  (i)  1  Stra.  54. 

Kuii.  Ejectment,  121  to  136.  (  /)  Yclv.  143.     Co.  TJt.  4.  b. 

(6)  1  Siia.  54.   Rep.  temii.  Hard w.  (j)  Ante,  175.     !^  E.ist,  190. 
13r.     Bull.  N.  P.  99. 


189  OF  THE  FORM  OF  ACTION 

V.  Ejectment,  defendants  ;(/t)  for  possession  gives  the  defendant  a  right  agaii^^t 
every  person  who  cannot  shew  a  sufficient  title,  and  the  party 
who  would  change  the  possession  must  therefore  first  establish 

*  190  a  *legal  title ;(/)  in  which  case  an  equitable  title  would  be  no 
bar  to  the  plaintiff's  recovery  ;(])  and  this  rule  prevails,  even 
if  a  stranger  who  has  no  colour  of  title  should  evict  a  person  who 
has  been  in  quiet  possession  short  of  twenty  years,  but  who  has 
not  a  strict  legal  title  ■,{k)  but  a  lessee  whose  tenancy  is  deter- 
mined, will  not  in  general  be  permitted  to  dispute  his  lessor's 
title.U)  The  lessor  of  the  plaintiff  must  also  have  a  strict  legal 
light ;  and  a  mere  equitable  interest  is  not  sufhcient  to  sup- 
port this  action ;  and  the  doctrine  that  the  legal  estate  cannot 
be  set  up  at  law  by  a  trustee  against  his  cestui  que  trust.,  no 
longer  prevails  -,{111)  and  a  party  cannot  recover  in  ejectment 
on  an  equitable  title  ;C")  though  where  trustees  ought  to  con- 
vey to  the  beneficial  owner,  it  will  be  left  to  the  jury  to  pre- 
sume that  they  have  conveyed  accordingly  ;  or  where  the  be- 
neficial occupation  of  an  estate  by  the  possessor,  under  an  equi- 
table title,  induces  a  probability  that  there  has  been  a  convey- 

■•^'  191  ance  *of  the  legal  estate  to  such  possessor  \{o)  but  when  the  facts 
of  the  case  preclude  such  presumption,  the  party  having  only 
the  equitable  interest  cannot  prevail  in  a  court  of  law.(/i) 

The  lessor  of  the  plaintiff  must  also  in  this  action  have  the 
sright  0/  /lossL'ssioii  at  the  time  of  the  demise  laid  in  the  decla- 


(/()  5  T.  K.  110.  n.  1.     East,  246.  any   tillc  may  support  trespass,   deti- 

(i)  4  Uurr.    2487.      1    East,   246.  niie  or  ti-ovci",  against  a  stranger  who) 

Run.  Ejectment,  15.     5  T.  11.  110.  2  takes    away     the    property  :     see  2 

T.  R.  CS4.     7  T.  R.  47.  Satind.  47.  c.      And   it  seems  better 

(  /)  5  East,  139.  policy  to  protect  the  quiet  possession 

(h)  2  T.  R.  749.     I  East,  24r>.     2  of  huul  against  any  person   but  the 

East,  469.     Scd  qusere,  for  it  is  clear  real  owner,  than  to  encourage  a  strug- 

that  trespass  would  lie  in  such  case  gle  for  the  possession  by  a  party  hav- 

against  a  stranger,    1  East,  244.    and  ing  no  colour  of  title. 

according     to     Allan   r.    Rivington,  (?)  2  Bl.  Rep.  1259.    Scd  vide  4  T. 

2  Saund.   111.  priority  of  possession  R.  683.     Peake,  L.  E.  13. 

alone  gives  a  good  title  to  the  lessor  of  (;»)  5  East,  138. 

the  plaintift' against  the  defendant  and  (/i)  7  T.  R.  3.  49.     8  T.  R.  122.     8 

all  the  world,  except  the  person  w  lio  East,  248.  263. 

has  a  better  title.     In  the  case  of  per-  (o)  Id.  ibid. 

sonal  property  it  is  clear  that  a  per-  (/>)  Id.  ibid. 

Son  having  possession,  though  w  ilhcut 


OF  THE  FORM  OF  ACTIOX.  19i 

ration  ;(y)  and  therefore,  the  doctrine  which  formerlj-  prevail-  ^'  Ejectment. 
ed,  that  a  mortgagee  might  maintain  an  ejectment  to  get  into 
the  receipt  of  the  rents  and  profits,  without  giving  a  notice  to 
quit,  though  a  tenant  under  a  demise  anterior  to  the  mortgage 
be  in  possession,  is  now  exploded  ;(?*)  and  a  remainderman, 
or  reversioner,  cannot  support  this  action  whilst  the  right  of 
possession  is  in  another  ;  nor  can  it  be  sustained  where  the 
right  of  entry  of  him  who  is  entitled  to  the  estate  is  taken 
awc>y,(,«)  either  by  twenty  years'  adverse  possession, (?)  or  by  a 
descent  from  a  person  who  made  the  ouster  to  his  heir,  in 
which  case,  if  the  disseisor  had  had  five  years'  quiet  posses- 
sion, a  writ  of  entry  must  be  resorted  x.o-,{n)  or  by  a  disconti- 
nuance.(T')  in  which  case  the  remedy  for  the  issue  in  tail  is  a 
writ  of  formedon.(TO) 

An  actual  entry  is  not  in  general  necessary  for  the  support 
of  this  action,  as  it  is  in  tresp.iss,  but  to  avoid  a  fine  it  must  be 
niade;C:r)  and  in  *many  cases  an  entry  is  advisable  ;  thus  an  *    192 

ejectment  may  be  brought  even  after  twenty  yearn'  adverse 
possession,  if  there  have  been  an  actual  entry  within  the  twen- 
ty years,  and  the  ejectment  be  brought  within  a  year  after  such 
entry  ;(j/)  and  trespass  will  not  lie  for  mesne  profits,  which  ac- 
crued before  an  actual  entry  made  to  avoid  a  fine,  but  the  par- 
ty's remedy  for  the  anterior  profits  is  only  in  equity. (r) 

This  action  is  only  sustainable  for  what  in  fact,  or  in  point  sdiy.  The  ia- 
of  law,  amounted  to  an  ouster  or  dispossession  of  the  lessor  of  ^"'-' ' 
the  plaintiff  ;(a)  for  if  there  be  no  ouster,  or  the  defendant  be 
not  in  possession  at  the  time  of  the  bringing  of  the  action,  it 
will  fail  ;(6)  and  in  such  case,  the  plaintiff  should  proceed  by 
action  of  trespass.  An  actual  ou&ter  may  be  by  driving  cattle 
out  of  the  land,  or  by  not  suffering  the  party  to  occupy  it ;  and 


(7)  8  T.  R.  2.   7  T.  R.  47.     2  East,         (r)  Supra,  note  s.     Sel« yn,  N.  P 

257.     1  T.  R.  600.  G.Vi  to  G57. 

(r)  Id.  ibid.     Run.  Ejectment,  lOD.         (w)  1  Saund.  319.  a.  261.  n.  3.  Run. 

SEa-st,  449.  Ejeetjnent,   42.      3    Bl.    Cora.    206 

(s)   3  Bl.  Com.    206.    171.      Run.  Bull.  N.  P.  99. 
Ejectment,  234.  242.  Bull.  X.  P.  99.         (.v)  1  Saund.  319.  b.  261.  n.  3. 
7  East,  319.  (ii)  1  Saund.  319.  c. 

(0  21  Jac.  I.  c.  16.     7  East,  299.  (:)  7  T.  R.  727.     1  Saund.  319.  b, 

(w)  3  Bl.  Com.   176.  206.      Run.         («)  3  Bl.Com.  199. 
Ejectment,  42.  supra,  note  s.  </>)  7  T.  K.  527.     1  B.  &  P.  573. 

Vol.  I.  [18  "j 


192  OF  THE  FORM  OF  ACTION. 

V.  Ejectment,  in  such  case,  even  one  tenant  in  common  may  support  an  action 
against  his  co-tenant,  but  in  general  the  mere  perception  of 
all  the  profits  by  the  latter  will  not  amount  to  an  ou.'iter.(c) 

The  requisites  of  the  declaratmi  in  this  action-  are  pointed  out 
in  the  second  volume. (c?)  The  count  gr  counts  should  be  on 
the  demise  of  the  person  entitled  to  the  Itgal  estate,  and  to 
the  right  of  fiossessioji^  at  the  time  of  the  supposed  demise, (f) 
and  the  premises  m.ust  be  described  with  certainty. (y) 

*    193  *lf  the  defendant  appear,  he  must,  by  the  terms  of  the  con- 

sent rule,  plead  only  the  general  issue,  though  he  may  by  leave 
of  the  court  plead  to  the  jurisdiction  (5")  The  damages  we 
have  seen  are  merely  nominal,  and  it  is  usual  to  remit  them, 
in  order  to  recover  a  real  compi  nsation  in  an  action  of  trespass 
for  the  mesne  profits.  Full  costs  are  recoverable,  but  when 
the  judgment  is  against  the  casual  ejector  by  the  default  of  the 
purty  in  possession,  the  only  mode  of  recovering  the  costs  is 
by  the  action  of  trespass  for  the  mesne  profits,  which  much 
resembles  the  common  action  of  trespass,  and  the  particular 
properties  of  which  are  stated  in  the  work  referred  to  in  the 
notc.(/!)  The  judgmejit  is,  that  the  plaintiff  do  recover  his 
term  (or  terms  according  to  the  number  of  demises  in  the  de- 
claration) of  and  in  the  tenements,  and  (unless  the  damages 
be  remitted,  as  is  most  usual)  the  damages  assessed  by  the 
jury  with  the  costs  of  increase. 


eOJ^'SEQUEXCES  OF  MISTAKE  IJ\'  FOIfJI  OF  AC'J^JOJW 

Consequences        We  have  already  seen  that  the  courts  consider  it  of  great  im- 

of  mistake  in  i  ,        i  ,      •         ,  t  ■,•  m 

form  of  action,  portance  that  the  boundaries  between  the  dinerent  actions 
should  be  preserved  ;(z)  and  the  consequences  of  a  mistake  in 

*  194  the  *application  of  the  remedy  are  very  material.  When  the 
objection  to  the  form  of  the  action  appears  upon  the  face  of 
the  declaration,  it  may  be  taken  by  demurrer,  motion  in  arrest 


(c)  Run.  Ejectment,  191.    Co.  Lit.  (g)  8  T.  R.  650.     1  Bl.  Rep.  897. 

199.  b.  (It)   Run.   Ejectment,   438  to  446 

(<■/)  Post,  vol.  2.  394.  et  seq.  Posit,  vol.  2.  388,  389. 

(«?)  7  T.  R.  47.     5  East,  132.  (/)  Ante,  80.     6  T.  R.  129-. 
(/)  Post,  vol.  2.  394.  n.  e. 


OF  THE  FORM  OF  ACTION.  194 

of  iudement,  or  by  writ  of  errbr,  but  not  as  a  ground  of  non-   Consequences 

J       tt  '  J  "-"  of  mistake  in 

suit,  and  the  defendant  will  not  be  entitled  to  costs,  when  the  formojuciion. 
judgment  is  arrested  ;{])  but  when  the  objection  does  not  appear 
upon  the  face  of  the  pleadings,  it  must  be  taken  as  a  ground  of 
nonsuit,  ar^d  the  defendant  will  not  be  entitled  to  costs  ;(/:)  thus 
where  the  plaintiff  in  an  action  on  the  case,  stated  tnat  the  de- 
fendant loilfully  drove  his  coach  and  horses  aguinst  tlic  plain- 
tiff''s  carriage,  the  court  arrested  the  judgment,  on  the  ground 
that  it  appeared  from  such  allegation  that  the  action  siiould 
have  been  trespass  and  not  case  ;(/)  and  where  it  appeared  upon 
tlie  face  of  the  declaration,  that  the  action  should  have  been 
brought  against  the  sheriff,  and  not  against  the  under-sheriff, 
after  verdict  upon  a  rule  to  shew  cause  why  a  nonsuit  should 
not  be  entered  Lord  Alansfidd  observed,  that  if  the  court  should 
order  a  nonsuit  to  be  entered,  the  plaintiff  must  pay  t!ie  de- 
fendant his  costs  ;  but  that  if  the  judgment  was  arrested,  each 
party  must  p.iy  his  own  costs;  but  that  as  it  appeared  upon  the 
declaration  in  that  case,  that  the  defendant  might  have  demur- 
red, and  thereby  have  avoided  the  costs  of  the  subsequent  pro- 
ceedings, the  court  would  arrest  the  judgment,  'and  not  per-  "^  195 
mit  a  nonsuit  to  be  entered  ;(?«)  but  where  the  action  was  in 
asj>um/isit  for  money  had  and  received  and  it  appeared  on  the 
trial,  that  the  plaintiff  should  have  declared  in  another  form  of 
action,  yet  as  the  objection  was  not  apparent  on  the  face  of  the 
declaration,  and  conse(|uently  the  defendant  could  not  demur,  or 
avail  himself  oi  it  otherwise  than  on  the  trial,  it  was  decided  that 
the  plaintiff  was  properly  nonsuited. (?2) 

If  by  either  of  these  means  the  plaintiff  fail  in  his  action,  and 
judgment  be  given  against  him  for  that  reason,  and  not  upon  the 
merits,  he  is  at  liberty  to  commence  a  fresh  action,  and  the  de-* 
fcndant  cannot  piead  in  bar  the  proceedings  in  the  first  inefiec- 
tual  suit.(o)  Thus  if  the  plaintiff  by  mistake  bring  trespass  in-" 
stead  of  trover,  and  judgment  be  given  against  him  on  that  ac-" 
count,  the  defendant  cannot  plead  it  in  bar  to  an  action  of  trover 


O')  I  B.  k  P.  470.  6  T.  It.  125.  (m)  Cowp.  407.  But  see  Canipb.- 
(Sowp.  407.  N.  V.  250. 

(A)  Cowp.  407.  4l4.  (")  Cowp.  4l4  to  419. 

(/)  0  T.  a  125.  6  T.  K.  ISS.  1  (o)  2  Saund.  47.  1.  and  see  3  Wils. 
Bast,  109.  309. 


195  ^i"  'flli^  FORM  OF  ACTION. 

Consegiieiicr^  brought  aftcrwaids  against  him  ;(/0  and  if  the  plaintiff  misstate 
Jonn  of  action,  his  caiise  ol  action,  and  the  defendant  dcniUi",  the  pluiniiff-U 
ccrt.vinly  not  precluded  iVoni  commencing  a  fresh  action,  and 
may  icply  to  a  plea  in  bar  ol  the  judyiucni  on  demurrer,  that  the 
sanie  was  not  obli.incd  on  the  merits  -,(7)  but  if  the  defendant 
plead,  and  the  plainiilV  take  issue,  and  a  verdict  be  lound  for 
the  defendant,  the  plauitifl"  vill  he  estopped  from  bringing  a 
fresh  action  ;  or  if  he  demin-  to  the  plea  in  bar,  and  such  plea 
^'    196  be  sufficient,  in  that  case  also,  no  second  action  can  be  *com- 

mcnced  ;(?•)  but  if  the  plea  were  not  sufficient,  and  the  judg- 
ment against  the  plaintifl'  was  on  the  defect  in  his  declaration, 
the  former  judgment  against  him  will  be  no  bar.(«) 


OF  JOLXDEIi  OF  ACTIO.XS.* 

OfJoiniltr  of      Whcrc  the  plaintiff  has  two  causes  of  action,  which  may  be 
.  htioiis.  .         ,  ,  ,  ,.,.,,■ 

joined  m  one  action,  he  oui;ht  so   to  proceed  ;  and  11  he  brmg 

two  actions,  the  court  will  compel  him  to  consolidate  tlicm,  and 
to  pay  the  costs  of  the  appiic.aicin.(/}  It  is,  therefore  mate- 
rial to  ascertain  w  lien  several  demands  m^iy  be  include -d  in  the 
same  action,  'lliis  may  be  considered  with  reference  \.o,Jirst, 
the  joinder  of  dilVerent /brwA-  of  action  ;  srcomlly,  of  (lifTerent 
ri!;/ifs  of  action  ;  and  thirdly^  the  consequences  of  misjoinder. 
1st  Joiniki-  '^  '^*^  joinder  in  action  depends  on  the  ybrw  of  the  action,  ra- 
of  .  iMVr  nt      ^\^q^  x\-^-^  on  the  su!>Jrct  matter  of  it ;  thus  in  an  action  aeainst 

fomts    of   ac-  ...  .     .    ,  . 

tion.  a  carrier,  if  th.e  plain  .ifl' declare  in  assumfisii  he  cannot  join  a 

count  in  trover,  as  he  may  if  he  'declare  against  him  in  case, 
or  the  joinder  depends  on  the  form  of  the  action  ;(w)  and  if  a 


(/>)  Id.  Ibiil.  I'rac.  3d    edit.   10  to  13.     Com.  Dig. 

(<7)  1  Mod.  '-Or.     Viii.  Abr.  Judg;-  Action,   G.      Bac.   Abr.   Actions   in 

ment,  Q.  4.  (ienLral,  C.     iJ  Vin.  Abr.  38.  tit.  Ac- 

()•)    1    :Mo(f.   20r.     Vin.   Abr.   tit.  tions,  Joinder,  U.  c.     Gilb.   C.  P.  5, 

Tudgnicnt,  Q.  4.  6,  7. 

(;;)  1  Mod. '20r.     Vin.  Abr.  Judg-  (0  2  T.  R.  639.     Tidd's  Prac.  5<1 

mcnt,  Q.  4.  pi.  3.  edit.  556. 

*  Tlie  joinder  of  several /'er.<!0,';,v  in  (/<)   Pw  BuUer,  J.   1  T.    R.    9.77. 

a  suit  lias  p.lready  been    eonsidered.  And  see  the  judgment  of  LoihI  £W«?;- 

As  to  joinder  of  actions  in  gcnend,  boroiiijh,  Cli.   J.   ill  3  East,  TO.  and 

see  2  Saund.  117.  b.  to  11'.  e.    Tidd's  ante,  135. 


OF  THE  FORM  OF  ACTION.  ^^197 

cause  of  action,  which  *ought  to  be  laid  in  assiim/isit,  be  im-  Of  Jolmkr  oj 

pio.perly  laid  in  case,  and  joined  with  a  count  in  trover,  no  ob- 

jeciion  can  be  taken  with  efFect  on  the  ground  of  misjoinder,  but 

onjy  the  particular  defeclive  count  should  be  demurred  to.(x') 

The  result  of  the   authorities   is   stated  to  be,  that  when  the 

same  plea  may  be  pleaded,  and  the  same  judgment,  given  on  all 

the  counts  of  the   declaration,  or  when  the  ccunts  are  of  the 

same  nature,  and  the  same  judgment  is  to  be  given  on  them  all, 

though  the  pleas  be  different,  as  in  the  case  of  debt  upon  bond 

and  on  simple  contract,  they  may  be  joined. (^r)     By  this  rule 

we  may  decide  in  general,  what  forms  of  action  may  be  joined 

in  the  same  declaration. 

In  actions  in /or7n  ex  cojitractu,  the  plaintiff  may  join  as  many 
different  counts  as  he  has  causes  of  action  in  assutvfidt ;  so 
also  in  covenant,  debt,  account,  annuity,  or  scire  facias. (x) 
So  debt  on  bond  or  other  specialty,  may  be  joined  in  the  same 
action  with  debt  on  judgment,  or  on  simple  contract,  or  for  an 
amerciament ;  so  may  debt  and  detinue,  though  in  these  cases 
the  pleas  are  different,  and  in  the  latter  the  judgment  also  va- 
ries ;(y)  which  joinder  has  probably  been  allowed,  because  the 
practice  is  sanctioned  by  the  entries  in  the  Registrum  Bre- 
vium.{z)  But  v.herc  the  defendant  would,  on  *bringing  error  *  198 
on  a  judgment  in  debt  founded  on  a  specialty,  be  compellable 
to  find  bail  hi  error  in  pursuance  of  the  3  Jac.  I.  c  8.  it  is  not 
advisable  to  join  a  count  in  debt  on  simple  contract,  the  judgment 
on  which  would  not  require  bail  in  error  ;(a)  so  several  counts 
may  be  joined  in  one  action  on  a  penal  statute,  for  different 
penalties  of  a  similar  nature,  as  for  several  acts  of  bribery. (6) 

So  in  actions  in  form  ex  delicto,  several  trespasses  may  he 
joined  in  the  same  declaration, (c)  ant'  several  causes  of  action 
in  case  may  be  joined  with  trover  ■,{d)  thus  case  against  a  com- 
mon carrier,  or  for  immoderately  riding  a  horse,  or  for  dis- 
turbing the  plaintiff  in  his  right  of  common,  or  for  hindering 


{v)  6  East,  3.35,  G.  (r)  Gilb.  C.  P.  5,   6,  7.     Bac  Abr. 

0")  2  Sauiiil.  lir.  c.  1  T.  R.  27f),  Actions  in  General,  C. 

277.     Bac.  Abr.  Actions  in  Genera!.  («)  2  East,  359.     Tidd's  Prac.  3d 

Com.  Dig  Aclijiis,  G.  edit.  1079. 

(a)  Bac.  Abr.  Actions  in  General,  {b)  4  T.  R.  229.     3  T.  R.  103.     2 

C.    Com.  Uig.   Actions,   G.     2  Vin.  Vin.  Abr.  44.  pi.  49. 

Abr.  42.  45,  40.  {c^  2  Saund.  117.  b.     8   Co.    87.    b. 

f^)  2Sauml.  117.  b.     1  "Wils.  252.  2  Vin.  Abr.  38.  &c. 

(d)  Id.  ibid.     1  T.  R.  277. 


198  OF  THE  FORM  OF  ACTION. 

O.f  Joinder  «/  him  from  landing  goods  upon  a  yard  of  the  defendant  contrary 
to  agreement  between  them,  or  for  not  returning  to  ihe  plain- 
tiff a  spaniel  delivered  to  the  defendant,  to  be  tried  and  return- 
ed in  a  reasonable  lime,  but  keeping  and  detaining  the  same 
from  the  plaintiff,  may  be  joined  in  one  action  and  with  a  count 
in  trover.(e)  So  in  replevin,  the  plaintiff  may  in  the  same  de- 
claration count  of  several  takings  on  different  days,  and  at  dif- 
ferent i)laces  in  the  same  county. (/)  And  the  plaintiff  may 
join  trespass  with  a  count  for  a  battery    of  his    servant  per 

*    199  quod  servitium  afiihit,   or   for  debauching   his   *servant,(5-)  or 

trespass  and  rescue  ;(//)  though  the  loss  of  service,  and  conse- 
quence of  the  rescue,  are  properly  the  subjects  of  an  action  on 
the  case  ;{i)  however,  if  these  injuries  be  joined,  they  should 
be  stated  to  have  been  committed  vi  ct  an/tis. 

But  in  order  to  prevent  the  confusion  which  might  ensue,  if 
different  forms  of  action,  requiring  diflerent  pleas  and  differ- 
ent judgments  were  allowed  to  be  joined  in  one  action,  it  is  a 
general  rule,  that  actions  in  form  ex  contractu  cannot  be  joined 
with  those  in  form  ex  delicto.  Thus,  assumjisit  and  an  action 
on  the  case,  as  for  a  tort,  cannot  be  joined,(y)  nor  assutnfisit 
with  trover,(A)  nor  trover  with  detinue. (/) 

And  with  the  aliove  exceptions,  counts  in  one  species  of  ac- 
tion cannot  be  joined  with  counts  in  another ;  as  assumpsit^ 
covenant,  debt,  or  account  with  each  otber,(?n)  nor  trespass  with 
case,  for  they  are  actions  of  distinct  natures,  and  the  judgments 
arc  different,  that  in  trespass  being  in  strictness  r/uod  ca/iiatur, 
and  that  in  case  quod  sit  in  misericordia.{n)  In  criminal  proceed- 
ings, the  joinder  of  different  offences  in  an  indictment  does  not 

^  200  render  the  proceeding  defective,  *though  it  is  matter  of  dis- 
cretion in  the  court,  on  motion  to  quash  an  indictment  so  fra- 
med.(o) 


(e)  M.  ibid.  (./•)  I  T.  R.  2r6,  277.     1  Vent.  366. 

(/)  F.  N.  B.   fiS.   n.  a.     Bull.  X.  Cartli.  189. 

P.  .14.     2  Vin.  Abr.  41,  (A")  '2  Lev.  101 .    3  Lev.  99.    1  Salk 

C^)  Allcyii,  9.     Bac.  Abr.  Actions  10.     3  Wils.  354.     6  East,  S3S. 

in  General,'  C.     3  "Wils.  IS.  (0  Willes,  118. 

(/i)  2  Lutw.  1249.     Ld.  Raym.  83.  (wi)  Bac.  Abr.  Actions  in  General, 

Tidd's  Prac.  3d  edit.  1 1.  n.  u.  C. 

(z)  Post,  vol.  2.  26r.  n.  u.  293  to  (?))  1  Ld.  Raym.  2*2,  273.  2  Saund 

299-  117.  e. 

(o)  8  East,  46,  47.    5  T.  R.  103. 


OF  THE  FORM  OF  ACTION,  200 

Where  the  same  form  of  action  may  be  adopted  for  several  %f^2'^'"' "-^ 
distmct  iniunes,  the  plaintiff  may  in  general  proceed  for  all  in   'idly.  Joinder 

rf  ^  .  ot    several 

one  action,  though  the  several  rights  effected  were  derived  ,.,>/(;,,  of  a,.. 
from  different  titles ;  but  a  person  cannot  in  the  same  action  tl'^|^'.  oil'^^iU- 
join  a  demand  in  his  own  right,  and  a  demand  as  representative 
of  another,  or  in  outer  droit,  nor  demands  against  a  person  on 
his  own  liability,  and  on  his  liability  in  his  representative  capa- 
city.(/0  '1  he  points  which  usually  occur  in  practice,  may  be 
considered  as  they  arise  in  actions  by  and  against  partners,  hus- 
band and  wife,  assignees  of  a  bankrupt,  executors  and  admi- 
trators,  and  heirs  and  devisees. 

In  actions  by  or  against  several  persons,  whether  ex  con- 
tractu or  ex  delicto,  all  the  causes  of  action  must  be  stated  to  be 
joint.  Thus  a  person  cannot  bring  a  joint  action  against  two, 
and  state  in  one  part  of  the  declaration  that  one  of  them  assault- 
ed and  beat  him,  and  in  another  part  that  the  other  took  a^vay 
his  goods,  for  the  trespasses  are  of  several  natures,  and  against 
several  persons,  and  they  cannot  plead  to  this  declaration. (</) 
But  in  the  case  of  a  survivor  of  several  contracting  parties,  a 
demand  by  or  against  him  as  survivor,  may  be  joined  with  a 
demand  due  in  his  own  right. (r) 

*We  have  already  considered  in  what  actions  a  husband  and  ^  201 
wife  ought  to  join,  or  be  joined  ;(.9)  and  it  is  here  only  neces- 
sary to  observe,  that  when  the  wife  is  co-plaintiff  in  an  action 
ex  contractu,  no  cause  of  action  can  be  included  unless  it  be 
founded  on  a  contract  with  the  feme  before  marriage,  or  she 
be  the  meritorious  cause  of  action,  and  her  interest  must  ex- 
pressly appear  on  the  face  of  every  count. (0  And  in  an  action 
in  form  ex  delicto  for  a  personal  injury,  if  the  wife  be  joined, 
the  declaration  must  proceed  only  for  torts  to  her  individually, 
and  not  for  such  wrongs  as  only  affect  the  husband. («)  And 
for  torts  to  the  person  or  personal  property,  if  she  be  joined, 
the  nature  of  her  interest  therein  must  be  exprcsiily  stated  {v) 


{p)  Bac.  Abr.  Actions  in  General,         (r)  3  T.  R.  433.     6  T.  R.  4Q3.     0 
C.     2  Vin.  Abr.  C2.     Com.  Dig.  Ac-     T.  R.  582.     1  Esp.  Rep.  547. 
tions,  G.  (s)  Ante,  17.  42.  60,  and  SI. 

(f/)  2  Saiind.  117.  a.     Sty.  153,  154.         {()  Ante,  20.     2  131.  Hep.  12jtj 
iT.  K,  3G0.  (?0  Ante,  CI. 

(r)  Ante,  62. 


201  OF  THE  FORM  OF  ACTION. 

Of  Joinder  of  And  an  action  on  the  case,  cannot  be  supported  against  the 
husband  and  wife,  for  words  spoken  by  botlxCw) 

The  assignees  of  J,  a  bankrupt,  and  also  of  B,  a  bankrupt, 
under  separate  commissions,  cannot  recover  in  the  same  action, 
a  joint  debt  due  from  the  defendant  to  both  the  bankrupts,  and 
also  separate  debts  due  to  each,  and  if  in  such  an  action,  the 
jury  have  assessed  the  damages  severally  on  the  separate 
counts,  the  court  will  arrest  the  judgment  on  those  counts, 
Avhich  demand  the  debts  due  to  each  bankrupt  separately.(x) 
But  where  the  plaintiffs  sued  as  assignees  of  ^and  jB,  and  also 
^^^  as  assignees  of  C,  for  a  joint  demand  *due  to  all  the  bankrupts, 

the  declaration  was  holden  good  on  a  motion  in  arrest  of  judg- 
ment.(y)  If  there  have- been  any  promise  to  the  assignees,  or 
cause  of  action  since  the  act  of  bankruptcy,  care  must  be  taken 
to  insert  some  count  in  the  declaration  adapted  to  such  demand  ; 
and  where  two  partners  became  bankrupts,  and  the  defendant 
between  the  two  acts  of  bankruptcy,  illegally  received  money, 
and  the  assignees  of  the  two  partners,  in  their  action  to  recover 
it,  declared  only  for  money  had  and  received  to  the  use  of  the 
two  partners  before  they  became  bankrupts,  and  in  another 
count  for  money  had  and  received  to  the  use  of  the  plaintiffs 
as  assignees,  it  was  decided,  that  the  plaintiffs  could  not  re- 
eover,  because  they  should  have  declared  in  one  count  for  mo- 
ney had  and  received  to  the  use  of  the  partner  who  last  be- 
came bankrupt,  and  of  the  plaintiffs  as  assignees. (z) 

A  plaintiff'  cannot  join  in  the  same  action  a  demand  as  executor^ 
•with  another  in  his  own  right.(a)  The  contradiction  and  doubts 
in  the  different  cases  to  be  met  with  in  the  books  upon  this 
point  are  merely  in  the  application  of  the  rule.(6j  In  the  late 
case  of  CoiViU  v.  lVatts^{c)  it  was  decided,  that  a  count  upon  a 
promise  to  the  plaintiff  as  administratrix,  for  goods  sold  and 
delivered  by  her  as  such,  after  the  death  of  the  intestate,  may 
-'•^  203  be  joined  with  a  count  upon  *an  account  stated  with  her  as  ad- 
vdnis'ratrix,  because    the  damages   and  costs  when   recovered 


(w)    Bac.  Abr.  Actions  in  Gtiieii!),         («)    I  T.  S.  489.     2  Saund.  117.  d. 
C.     2  Wils.  227.  3T.  R.  G59.     4  T.  R.  277.    Bac.  Abr 

(x)  3  T.  R.  4.53.  Actions  iu  General,  C. 

(?/)   3  T.  R.  779.  {!>)  See  the  cases,  2  Saund.  117.  d- 

{-)  3  B.  &  P.  dOS.  6  East,  405. 

(f )  6  East,  405. 


OF  THE  FORM  OF  ACTION.  203 

would  be  assets,  and  Lord  Ellenborough,  Ch.  J.  expressed  a  ^^[^''"'^  "^ 
wish,  that  the  rule  lard  down  in  Bull  v.  P(ilmer,{d)  had  been 
abided  by,  viz.  that  where  the  money  ivhrn  recovered,  would  be 
nasels,  the  executor  may  declare  for  it  in  his  representative  cha- 
racter  ;  and  Grose,  J.  observed,  that  the  best  line  to  adopt  in 
determining,  whether  counts  may  be  joined,  is  to  consider, 
whether  the  sum  when  recovered,  would  be  assets,  and  La^v- 
rence,  J.  observed,  that  the  reason  why  promises  made  to  a 
plaintifl'  in  his  own  riglit,  cannot  be  joined  with  promises  to 
him  in  his  representative  character,  is,  because  the  funds,  to 
•which  the  money  and  costs  to  be  recovered,  are  to  be  afipiied, 
or  out  of  which  the  costs  are  to  be  paid,  are  different,  and  that 
it  appeared  to  liim,  that  those  cases  in  which  the  rule  had  been 
laid  down,  that  counts  may  be  joined,  whenever  tlie  money  re- 
covered under  them  Avould  be  assets,  afibrd  the  best  guide. 
The  question  of  costs,  is  a  matter  of  very  different  considera- 
tion, on  which  many  of  the  contrary  decisions  have  proceeded. 
The  reason  why  an  executor  suing  in  his  representative  cha- 
racter, shall  not  be  liable  to  costs  if  he  fail,  is,  because  he  is 
supposed  not  to  be  cognisant  of  the  contracts  made  by  his  tes- 
tator ;  but  as  he  must  be  cognisant  of  all  contracts  made  by 
himself  personally,  though  in  his  representative  character,  and 
as  he  might  declare  upon  *them  in  his  own  right,  there  is  no  *   204' 

reason  why  he  should  be  exempt  from  costs,  in  case  he  fail  in 
his  action,  and  Lc  Blanc,  J.  said,  "  the  plain  and  intelligible 
*'  line  is,  that  the  counts  may  be  joined  whenever  the  money 
?'  when  recovered  would  be  assets."  It  is  therefore  clear,  that 
an  executor  or  administrator,  may  declare  as  such,  for  money 
paid  by  him  in  that  character,  and  may  join  such  count  with 
counts  on  promises  to  the  testator  or  intestate. (e)  So  money 
had  and  received  by  the  defendant,  to  the  use  of  the  phuntiff 
as  executor,(y)  and  an  account  stated  with  him  as  executor, 
of  monies  due  and  owing  to  the  testator,(^)  or  to  the  plaintiff 
asexecutor.(/2)  may  be  joined  with  counts  on  promises,  to  the 


((/)  'i  Lev.  iGi.  {^)  5  E.i">t,  150.     6  East,  406.  403 

(<")  3  East,  104.  1  T.  It.  48'. 

(./•)     3T.R.  569.     SSramd.  C-Jr,        {h)    6  East,  40G.  40,3.    ace.     iLd. 
208.  Rayra.  437.      'J  Saund.  117.  H.     semt 

conf. 

Vol..  I  [  19  1 


204  OF  THE  FORM  OF  ACTION. 

Of  Joiiuhrr  of  tcstator  or  intestate.     And  where  the  plaintiff  declared  as  exc- 
'*"""  cutor  upon  a.  bill  of  exchange  indorsed  to  him  in  that  character, 

it  Wits  hoiden  sufficient, (0  though  in  aiiotlicr  case  it  was  de- 
cided, that  an  executor  cannot  join  a  count  upon  a  bond  given 
to  iiis  testator,  arid  a  count  upon  a  bond  given  to  him  as  execu- 
tor, in  liie  same  action. (y)  Where  six  years  have  elapsed 
since  the  death  ol  the  tcstator,  or  intestate,  or  it  may  on  any 
otlier  account  be  matei  ial  for  the  plaintiff  to  avail  himself  of  a 
promise  or  acknowledgaicnt  since  the  death,  counts  should  be 

*   205  introduced  in  tlie  declaration,  on  promises  to  the  executor  *in 

that  cluu\.cter,(A')  for  otherwise,  such  promise  or  acknowledg- 
ment, CL.nnot  be  given  in  evidence. (/)  In  every  count  stating 
debts  or  piomises  to  the  executor  or  administrator  in  that  cha- 
racter, the  word  ''  an"  executor,  Sec.  must  be  inserted. (?w) 

So  in  an  action  agahi&t  an  executor,  a  count  cannot  be  in- 
troduced, which  would  charge  him  personally,  for  the  judgment 
in  the  one  case,  would  be  dr  bonis  tesfatoris,  and  in  the  other, 
dc  bonis  profiriis  ;{n)  and  therefore  a  count  for  money  lent  to, 
or  had  and  received  by,  an  executor  as  such,  is  not  sustainable  ;(c) 
but  an  account, 'staled  by  the  defendant  as  executor  or  admini- 
strator, of  monies  due  from  the  testator  or  intestate  may  be 
joined  with  counts  upon  promises  by  the  testator  or  intestate, 
and  this  is  the  common  mode  of  declaring  against  executors 
and  administrators,  to  save  the  statute  of  limitations ;(/;)  and 
though  it  has  been  considered  that  a  count  upon  an  account 
stated  by  an  executor  as  such,  of  monies  due  and  owing  from 
him  i\\  that  character,  cannot  be  joined  with  counts  on  promises 
by  the  testator,  on  the  ground  that  such  account  stated  makes 

^   20G         ^'i^  executor  personally  *liubie,(5')  yet  it  is  submitted  that  such 


{h    IT.R.  4b7.     6  East,  410.  413.        {o)    2  Saiincl.  117.  d.     4  T.  R.  347. 

2  Tin.  Abr.  48.  pi.  9.  1  H.  Bl.  lOS. 

( /)  3  B.  k  P.  7.     Sed  vide  1  T.  R.         (/»)  2  Saiind.  117.  e.     1  H.  Bl.  102 

48r.    6  East,  405.  Forrest's  Rep.  Exchequer,  98.  where 

(/;)    See  the  form,  post,  vcl.  '«.  5G  an  actual  account  has  not  been  stated 

to  58.  by     the      defendant    executor,    add 

(/)  3  East,  409.    Willes,  29.  counts  as  post,  vol.  2.  61,  62. 

(m)     5  East,  150.      But  see  2  Lev.         (9)    I  H.  Bl.   108.    114.     2  Saund. 

110.       2  Vin.  Abr.  47.  pi.  6.  48.  pi.  9.  117.  d.      Tidd's  PrRC.  3d  edit.  12.     2 

2  B.  is  P.  424.  B.  k  P.  224. 

(«)   2  Saund.  117.  d.      Hob.  S8.     2 
Lev.  228.     2  Vin.  45.  pi.  52.  47.  pi,  5. 


OF  THE  FORM  0F  ACTIOX.  2(^6 

nn  account  would  not  make  the  executor  personally  liable,  and  Of  Joinder  ?/" 
as  it  lias  been  decided  that  an  account  stated  nvith  an  executor 
of  monies  due  and  owino;  to  him  as  such,  may  he  joined  \\\\.\\ 
counts  on  promises  to  the  testator,  it  is  presuined  that  this  ques- 
tion would  now  meet  with  a  different  decision. (r)  Whenever 
an  executor,  &c.  is  sued  upon  promises  by  him  in  that  cha- 
racter, the  words  "«&■  executor,"  Ccc.  must  be  inserted  in  each 
count. (*) 

The  consequences  of  a  misjoinder  are  more  important  than  .iflly.  Con.vj- 
the  circumstance  of  a  particular  count  bein<^  defective,  for  in  liiisjoinder. 
the  case  of  misjoinder,  however  perfect  the  counts  may  re- 
spectively be  in  themselves,  the  declaration  will  be  bad  on  a 
tjcneral  demurrer,  or  in  arrest  of  jud.^ment,  or  upon  error  ;(/) 
and  the  plaintiff  oannot,  if  the  declaration  be  demurred  to,  aid 
the  mistake  by  entering  a  nolle,  firosequi^  so  as  to  prevent  the 
operation  of  the  demurrer.(w)  though  the  court  will  in  general 
give  the  plaintiff  leave  to  amend  by  striking  out  some  of  the 
covm'ts  on  payment  of  costs. (it')  In  some  cases,  however,  a 
misjoinder  may  be  aided  by  intendment  after  verdict,(Tr)  *and  *  207 
by  taking  separate  damages,  or  by  entering  a  rcmittit  damna^ 
the  misjoinder  may  be  aided  ;(.r)  though  it  is  said,  that  if  as- 
.nim/idt  and  trover  be  joined,  and  there  be  a  verdict  for  the  de- 
fendant on  the  count  in  trover,  that  does  not  cure  the  declara- 
^ion.(.v) 

OF  THE  ELECTIO.Y  OF  ACTWJWS. 

In  considering  the  application  of  each  jjarticular  action,  we    ofEhctinn  of 
have  seen  that  the  party  injured  frequently  has  an  election  of  -^'"""/iv. 
several  remedies  for  the  same  injury. (-)     As  the  due  exercise 


(r)    Forrest's  Rep.  E.xchLMiiRT,  98.  (t)  4T.  H.  ,348. 

6  Kast,  4Ct5  K.-il.^.  (w)  '2  Lev.    HO.     Com.    Dig.   Ac- 

(s)  2  B.  &  P.  424.     Ante,  '20.>.  tion,  G.     '2  Vin.  Abr.  4?.  pi.  6. 

(0  2  B.  fct  P.  4-24.    iT.ll.3i7.     I  (,r)  11  Mod.  196.      2  Vin.  Abr.  43 

JI.  Bl.  108.  pi.  9.     3  T.  K.  4,3.3. 

(v)  1  H.  Rl.  110,  111.  11,3,  114.     4  (.(/)  2Sauiid.  117.d.  sed  vid.  supri.. 

T.  K.  360.    Tidd's  Prac.  3d  edit.  650.  (:)  Com.  Di-  Action,  M.    Sty.  4 

1  Sauiid.  207.  c.  Co.  Lit.  145.  a.    2  Bl.  Kep.  1112. 


207  OF  THE  FORM  OF  ACTION. 

Of  Election  of  of  this  election  is  of  great  importance,  it  may  be  useful  con- 
'  ^  ^°"'^-  cisely  to  state  the  principal   points  which  direct  the  choice  of 

several  remedies.  And  these  may  be  Avith  reference  to,  Ist^ 
The  nature  of  the  plaintiff's  right  or  interest  in  the  mutter  af- 
fected. 2dly.  The  security  of  bail,  and  the  process.  3dly. 
The  number  of  the  parties  to  the  action.  4thly.  The  number 
of  the  causes  of  action,  and  the  joinder  thereof  in  one  suit. 
5thiy.  The  nature  of  the  deftace,  and  whether  it  be  advisable 
to  compel  the  defendant  to  plead  specially.  6thly.  The  venue 
or  place  of  trial.  Tihly.  The  evidence  to  be  adduced  by  the 
■^  208  plainliif  or  defendant.  8thly.  The  *costs.  9thly.  The  judg- 
ment and  execution.     And,   lothly.  Bail  in  error. 

1st.  A  strict  legal  title  is  essential  to  the  support  of  some  re- 
medies, but  in  others  the  plaintiff's  bare  possession  of  the 
property  affected  is  sufficient.  Where  the  title  of  the  plaintiff" 
may  be  doubtiul,  it  is  in  general  advisable  to  adopt  the  latter 
description  of  remedy.  Thus  an  action  of  trespass  to  real  pro- 
perty, may  be  supported  against  a  stranger,  by  any  person  in 
the  actual  possession,  though  he  have  no  title,  but  in  eject- 
ment the  lessor  of  the  plaintiff  must  recover  on  the  strength 
of  his  own  legal  title  ;(a)  and  therefore  where  the  title  of  the 
party  injured  is  doubtful,  the  action  sliould  be  trespass  ;  and  as 
the  defendant  in  replevin  for  a  distress  taken  damage  feaaarit, 
must  in  his  avowry  or  cognisance  state,  and  if  denied,  prove, 
a  title  to  the  locus  ifi  quo,  in  fee  or  tail,  in  himself,  or  some 
person  from  whom  he  derives  his  title,  an  action  of  trespass  is 
preferable  to  a  distress,  where  the  title  of  the  occupier  of  the 
land  may  be  doubtful. (6)  On  the  other  hand,  where  the  party 
interested  can  clearly  establish  a  title  in  himself,  or  in  his  trus- 
tee, and  yet  it  may  be  doubtful,  in  which  particular  person  the 
legal  title  may  be  vested,  a  distress,  or  an  action  of  ejectment, 
where  there  has  been  an  ouster,  may  be  advisable,  because  in 
replevin  brought  for  the  distress,  there  may  be  several  avow-? 
ries  upon  diftierent  titles,  and  in  ejectment  there  may  be  several 
counts  on  demises  by  different  parties. 
*  209  *2dly.  In  actions  in  form  ex  delicto,  as  in  case  and  trespass^ 

the  defendant  cannot  be  arrested  without  a  special  order..of  the 


(rt)  1  East,  244.  24C.  (/')    1  Saund.  340.  e.  n.  2.     Wille^ 

221. 


OF  THE  FORM  OF  ACTION.  209 

court  or  a  judge,  and  it  is  not  usual  to  grant  such  order,  except  Of  Election  of 
■where  there  has  been  an  outrageous  battery,  or  the  defendant  *'^'^"^"*- 
is  about  to  quit  the  kingdom  ;(c)  and,  therefore,  in  cases 
where  it  maybe  material  to  have  the  security  of  bail,  the  action 
should,  if  possible,  be  framed  either  in  trover  or  in  assumfisit 
for  money  had  and  received,  adding  such  other  special  counts 
as  may  be  advisable  under  the  circumstances  of  eaci*  particular 
case.(f/)  Where  however  the  defendant  has  been  already 
arrested,  the  form  of  action  must  correspond  with  the  affidavit 
to  hold  to  bail  and  the  ac  eticun  part  of  the  latitat  or  other  pro- 
cess ;  for  otherwise,  if  the  cause  of  action  exceed  AQl.{e)  the 
defendant  will  be  entitled  to  his  discharge  out  of  custody  on 
filing  common  bail.(/ )  But  this  will  be  the  only  consequence, 
for  the  court  will  not  on  this  account  set  aside  the  proceedings 
against  the  defendant  for  irregularity.(^') 

Sdly.  In  an  action  in  form  ex  contractu  we  have  seen  that  if  a 
person  who  ought  to  be  made  co-filaintiff  be  omitted,  it  is  a 
ground  of  nonsuit,(/2)  except  in  the  case  of  persons  suing  in 
uuter  droits  as  co-executors  or  co-assignees  ;{i)  whereas  in  ac- 
tions in  form  rx  delicto,  the  non-joinder  of  a  party  who  *should  *  21C 
have  been  a  co-plaintiff,  can  only  be  pleaded  in  abatement  ;(j) 
and  consequently,  the  latter  form  of  action  is  in  many  instances 
preferable.  "Wc  have  also  seen  that  the  joinder  of  too  many 
defendants  in  an  action  in  form  ex  coritractii,  is  a  ground  of 
nonsuit,(/t)  and  that  the  omission  of  a  person  who  ought  to  be 
made  a  defendant,  may  be  pleaded  in  abatement ;(/)  but  that  in 
actions  in  form  ex  delicto.^  the  omission  of  a  party  jointly  con- 
cerned in  committing  the  injury,  cannot  in  general  be  pleaded 
in  abatement,  and  that  when  the  offence  may  in  point  of  law 
have  been  committed  by  several,  the  joinder  of  too  many  de- 
fendants will  be  no  ground  of  objection  ;(?«)  and,  therefore, 
where  it  may  be  doubtful  how  many  persons  should  be  made 
defendants,  it  is  advisable  to  declare  in  case,  &c.  in  preference 


(0   Tidd's  Prac.  3(1  edit.  151.  (/,)  Ante,  7. 

{(l)  3  ]i0%x,  70.  (/)  Id.  ibid.  n.  g.     3  B.  &  P.  465, 

(0   1  H.  BI.  310.     2Saund.  52.  .q.  ( /)  Ante,  53. 

(/)  7  T.  U.  SO.     8  T.  K.  27.     5  T.  (k)  Ante,  31. 

K.  -iO'J.     2  Kast,  305.     1  H.  Bl.  310.  (/)    Ante,  29. 

fC'-)  6T.R.363.  0?0  Autc,  75. 


210  '      GF  THE  FORM  Ol"  ACTION. 

Of  Election  0^  to  an  action  of  aasumfisUXn)  Sou  distress  for  a  rent  charge  is 
frequently  preferable  to  an  action,  because  in  the  latter,  all  tlie 
pernors  of  the  estate  charged  with  the  payment,  must  be  join- 
ed.(o) 

4thly.  Where  the  plaintiff  has  several  demands,  recoverable 
in  different  forms  of  action,  he  may  and  frequently  ought  to 
proceed  for  the  whole  in  one.(/;)  Thus  a  party  may  declare 
specially  against  a  bailee  for  neglect,  cither  in  assumpsit  or  in 
case  ;  if  he  have  also  a  money  demand  against  the  bailee,  due 

*  211  °"  simple  *contract,  he  should  declare  for  both  causes  of  ac- 
tion in  aiisu7ii/hnt ;  but  if  instead  of  the  money  demand,  he 
have  a  distinct  cause  of  action  in  trover,  the  declaration  should 
be  in  case,  in  order  to  avoid  the  expense  of  two  actions. (9)  So 
for  a  money  demand,  due  on  a  simple  contract,  the  plaintiff  in 
general  has  an  option  to  declare,  either  in  assum/isit  or  debt ; 
if  there  be  also  another  demand  of  an  unliquidated  nature, 
founded  on  a  simple  contract,  it  is  then  proper  to  declare  in 
assizm/isity  for  both  causes  of  action  ;  but  if  there  be  no  un- 
liquidated demand,  or  if  part  of  the  demand  be  due  on  spe- 
cialty, debt  may  be  preferable. 

5thly.  By  a  judicious  choice  of  the  remedy,  the  defendant 
may  be  frequently  precluded  from  availing  himself  of  a  de- 
fence, which  he  miglit  otherwise  establish.  Thus  in  assumfi- 
sit  against  a  person,  who  has  been  a  bankrupt,  for  money  had 
and  received  by  him  before  his  bankruptcy,  however  tortiousiy, 
his  certificate  would  l)e  a  sufficient  bar,  but  by  declaring  ix\ 
trover,  he  will  be  deprived  of  such  defence. (r)  And  where 
goods  have  been  sold  l)y  a  person  in  contemplation  of  Ijankrupt- 
cy  by  way  of  fraudulent  preference  to  a  creditor,  the  remedy 
by  the  assignees  should  be  trover,  and  not  ansuwfinit  as  for 
goods  sold  and  delivered,  because  in  the  latter  form  of  action, 
the  defendant  might  avail   himself  of  the  debt  from  the  bank- 

-^  91  r>  rupt,  as  a  set-ofT.U)  The  *election  of  the  form  of  action,  is 
also  frequently  material,  in  order  to  compel  the  defendant, 
either  to  take  issue  upon  some  particular  allegation  in  the  de- 


(/•i)  3  East,  62  to  70.  (<?)  3  ^'a-t,  "0. 

(0)  Co.  Lit.  1C2.  b.      1  Saund.  282.  {r)  6  T.  K.  6'J5.     Ante,  145. 

n.  1.  and  284.  n.  3.  and  4.  (s)  4  T.  K.  211.     2  H.  Bl.  135- 
{l>)  2  T.  K.  639.  Ante,  196.. 


OF  THE  FORM  OF  ACTION.  2l2 

«.laration,  instead  of  putting  the  plaintiff  to  prove  the  whole  of  of Elect'  isr 
his  case,  or  to  compel  the  defendant  to  plead  his  ground  of  de-  Actions. 
fence  specially.. f)  Thus  in  covenant  for  rent,  the  defend- 
ant must  plead  to  some  particular  allegation  and  there  is  no 
general  issue,  but  in  debt  on  a  lease  he  may  plead  nil  -debety 
and  thereby  compel  the  plaintiff  to  prove  the  whole  of  his  de- 
claration.(u)  So  trespass  is  in  general  preferable  to  case,  be- 
cause in  the  latter,  under  the  general  issue,  the  defendant  may 
not  only  dispute  the  plaintiff's  statement  of  his  cause  of  action, 
but  may  give  in  evidence  most  matters  of  defence,  but  which 
he  must  plead  specially  in  trespass. (v) 

6thly.  In  some  cases,  there  may  be  two  or  more  actions  in 
effect  for  the  same  injury,  the  one  local,  and  the  other  tran- 
sitoiy.  Thus  debt  for  rent,  by  the  assignee  or  devisee  of  the 
lessor,  against  the  lessee,  is  local,  and  must  be  laid  in  the 
county  wlrere  the  estate  lies  ;  {tv)  but  in  covenant^  at  the  suit  of 
the  same  parties,  upon  an  express  covenant  for  the  payment 
of  rent,  Sec.  the  venue  is  transitory  ;(a;)  and  consequently  the 
latter  form  of  action  should  be  adopted,  where  it  may  be  ad- 
visable to  try  the  cause  out  of  the  county  where  the  estate  is 
situate. 

*7thiy.  The  evidence  must  also  be  attended  to  in  the  election         ^91^ 
of  actions  ;  thus  it  is  frequenUy  more  convenient  that  the  ac- 
tion should  be  trespass  than  case,  because  if  it  be  laid  in  trespass 
no  nice  points  can  arise  upon  the  evidence,  by  which  the  plaintiff 
may  be  turned  round  upon  the  form  of  the  action,  as  there  may , 
in  many  instances,  if  case  be  brought.(y) 

8thly.  In  actions  in  form  ex  contractu^  the  plaintiff  is  in  ge- 
neral entitled  to  full  costs,  though  he  recover  less  than  40s. 
damages,  it  having  been  decided,  that  the  22  and  23  Car.  II,  c. 
9.  does  not  extend  to  actions  of  g6sw7??/«zV,  debt,  detinue,  or  co- 
venant ;{z)  and  therefore,  it  is  not  in  general  material,  so  far 
as  respects  the  costs,  which  of  these  forms  of  actions  be  adopt- 
ed.    But  in  trcftjiass  for  injuries  to  the,  person,  or  to  real  pro- 


(0  Ante,  lis.  ■  (x)  Id.  ibid. 

C«)  Ld.  Kayiu.  1500.  (i/)  3  East,  600. 

(f)  Ante,  145,  146.  (:)  Tidd's  Pi-ac.  Sd    edit.  S79,  &89, 

(w)    1  Saund.  238.   241.      Sir  W 
Jones,  53. 


213  OF  THE  FORM  OF  ACTION". 

Of  Election  of  perty,  if  the  plaintiff  recover  less  than  40s.  damages,  he  is  not 
'  '  '""*'  entitled  to  more  costs  than  damages,  and  therefore  for  such  in- 

juries, when  practicable,  it  is  frequently  advisable  to  declare  in 
case  or  trover,  in  which  full  costs  are  usually  recoverable.(«) 

9thly.  The  action  of  debt  is  in  general  preferable  to  assumfi' 
sit,  or  covenant,  because  the  judgment  therein  by  ?iil  dicit^  Sec 
is  final,  and  execution  may  be  taken  out  immediately,  without 
the  expense  and  delay  of  a  writ  of  inquiry,  which  is  usually 
necessary  in  assianjisit  or  covenant  ;(b)  and  it  is  better  to  pro- 
^^  214'  ceed  in  debt,  on  *an  award,  than  on  tlie  arbitration  bond,  because 
in  case  of  judgment  by  default  on  the  latter,  a  writ  of  inquiry 
is  necessary,  under  the  8th  and  9th  William  III.  c.  2.(c) 

lOihly.  In  an  action  of  debt  upon  a  money  bond,  or  for  rent, 
or  upon  any  specific  contract,  the  3  Jac.  I.  c.  8.  compels  a  de- 
fendant who  brings  error  upon  a  judgment  by  nil  dicie,  See.  ta 
find  bail  in  error  ;(f/)  but  in  any  other  form  of  action,  as  cove- 
nant or  assum/isil,  no  bail  in  error  is  required,  unless  the  error 
be  brought  after  verdict  ;  therefore  debt  for  rent,  or  upon  a 
mortgage  deed.  Sec.  is  preferable  to  covenant  or  assiimfidt. 

The  circumstance  of  a  party  having  elected  one  of  several 
remedies  by  action^  will  not  in  general  preclude  him  from 
abandoning  such  suit,  and  after  having  duly  discontinued  it,  he 
may  adopt  any  other  remedy.  But  in  the  case  of  a  distress,  if 
the  cattle  escape,  the  party  distraining  cannot  sue  for  the  rent, 
or  trespass,  unless  it  be  shewn  that  the  escape  was  wholly  with- 
out his  default. (<?) ' 


(a)  6  T.  R.  129,  I  '^0.   Tidd's  Prac.         (r/)  Tidd's  P/ac.  3d    edit.  1075  to 

5d  edit.  880.  lOSO. 
(i)  Ante,  lOr.  (e)  1  Salk.  248.     1  Ld.  Raym.  719 

(c)  Post,  vol,  2.  145.  n.  t. 


215 


CHAPTER  III. 

OF    PLEADING    IV    GENERAL. (*) 

X  LEADING  is  the  statement  of  the  facts  which  constitute 
;he  pluinliff 's  cause  of  action,  or  the  defendant's  ground  of  de- 
fence, in  a  logical  and  Legal  fonn  ;  it  is  the  forniiJ  mode  of  al- 
leging that  on  the  record,  which  would  be  the  support  or  the 
defence  of  the  party  in  evidence. (tz)  It  is,  as  observed  by  Mr. 
Justice  Buller^{b)  one  of  the  first  principles  of  pleading,  that 
there  is  only  occasion  to  statcyizcAs,  m  hich  must  be  done  for  the 
purpose  of  informing  the  court,  whose  duty  it  is  to  declare  the 
law  arising  upon  those  facts,  and  of  apprising  the  opposite 
party  of  what  is  meant  to  be  proved,  in  order  to  give  him  an 
opportunity  to  answer  or  traverse  it.  I'he  observations  of  Lord 
Chief  Justice  De  Grey  on  the  structure  of  an  indictment,  are 
very  forcible,  and  equally  applicable  *to   the  pleadings  in  civil  ^  216 

actions  :  "  the  charge  must  contain  such  a  description  of  the 
"  crime,  that  the  defendant  may  know  what  crime  it  is  which 
"  he  is  called  upon  to  answer,  that  the  jury  may  appear  to  be 
"  warranted  in  their  conclusion  of  '  guilty,'  or  '  not  guilty,' 
*'  upon  the  premises  delivered  to  them,  and  that  the  court  may 


(*)  T  forbear  in  Uiis  jiractical  trca-  Doncj.  278.  and  sec  the  observations 

lise  to   observe  upon  the   history    of  on  Com.  Dig.  Pleader,  A.    Bar.  Abr. 

pleading,  or  to  notice  the  many  oh-  Pleas   and    Pleading,   and    the  judg- 

servations  in  the  books  upon  the  utili-  ment  of  Lord  Cliief  Justice  De  Grey, 

ty  thereof;  they  are  to   be   found  in  in  Rex  v.  Home,  CVnvp.  G8'2.  683.  &c. 

Mr.   Lav.es'  Treatise  on  Pleading,  I  as  to  the  general  naiuru  and  object  of 

to  33.  and  a  tract  entitled,  a  Summa-  pleading, 

ry  of  Pleading,  1  to  7.  {b)  Doug.  159. 

(fl)  Per  liuUev,  J.   3  T.  R.    W.). 

Yoh.   I.  [   ^0    1 


216  OF  PLEADING 

"  see  such  a  definite  crime,  that  they  may  apply  the  punish- 
"  ment  which  the  law  prescribes.  The  ceric.inly  essential  to 
"  the  charge,  consists  of  two  parts,  the  mhtter  to  be  charged, 
*'  and  the  manner  of  charging  it."(<^)  Hence  the  science  of 
special  pleading  may  be  considered  under  two  heads  :  1st.  The 
facts  necessary  to  be  stated  ;  and  2dly.  The  form  of  the  state- 
ment ;  and  these,  together  with  some  general  rules  of  construc- 
tion, and  the  division  of  pleadings,  we  will  consider  in  the  prc« 
sent  chapter. 


/.  THE  FACTS  Js'ECESSAltY  TO  HE  STATED. 

I.   The  fads       In  general,  whatever  circumstances  are  necessary  to  consti- 

vecer,Hary  to  „  ,   .  ,  ,      r   i    r  , 

be  stated.  tute  the  cause  oi  compuunt,  or  the  ground  or  delence,  must  be 
stated  in  the  pleadings,  and  all  beyond  is  surplusage  ;(rf)  facts 
only  are  lo  be  stated,  and  not  arguments  or  inferences,  or  mat- 
ter of  la\v.(e)     There  are  some  facts  of  such  a  public  or  genc- 

^'   217         ral  nature,  that  the  *courts  ex  officio  take  notice  of  them,  and 

which  consequently  ought  not  to  be  stated  in  pleading ;  and 

therefore,  it  is  advisable  to  consider  a  few  of  the  principal  rules 

as  to  the  facts  of  which  the  courts  will  ex  officio  take  notice. 

1st.   Facts  of       The  courts  will  ex  officio  take  notice  when,  the  Kini^  came  to 

•which    tlie  ,  /•  r  .      , 

coni-i  vill  ex  the  throne, (/)  and  of  the  King  s  proclamations  ;(5-)  and  conse- 

ticl^'shoukr"'  q"cnlly,  those  facts  need  not  be  alleged  in  pleading ;  but  pri- 

iiot  be  stated,  vate  orders  of  council  are  not  considered  as  matters  of  law,  or  of 

such  public  nature,  as  to  render  it  incumbent  on  the  judges  ex 

officio  to  take  notice  of  thcm.C//)     The  courts  are  also  hoiuid  to^ 

take  notice  of  all  the  privileges  of  the  crown. (z) 

The  time  of  holding  every  Farliamcnty  and  the  prorogations 

and  sessions  thereof,(y J  and  also  Avhcre  any  parliament  sat  will 

be  taken  notice  of  judicially, (A)  and  therefore,  neither  of  these 

facts  should  be  stated  in  pleading,  and  if  either  be  misstated, 


(r)  Cowp.  C82,  68.3.  (A)  2  Lil.  Prac.  Reg.  303. 

(>/)  Covp.  683.     1  Ld.  Royrn.  171.  (i)  Ld.  Ruym-  980. 

(e)  Coup.  684.     5  East,  275.  Com.  (./)  1  Ld.  Rayni.   343.     Plovd.  "". 

Dig.  Pleader,  C.  78.  Moore,  551.     I  Lev.  296.     Std    vide 

(/)  2  Ld.  Raym.  794.  791,  2  Mod.  240.    Bac.  Abr.  Statute,  L.  5. 

Ig)  1  Ld.  Jtaym.  282.  (/<■)  1  Ld.  Raym.  210.  343. 


IN  GENERAL.  217 

even  in  pleading  a  private  act,  not  before  the  court,  the  pleading  J  '^■'^  /«c<s 

.  .  .  .  1-cce  ^ary     to 

will  be  defective  on  demurrer,  or  in  the  case  of  a  private  act,  on  be  st.ued, 

the  plea  of  md  del  record,  or  any  other  plea,  putting  in  issue  the 

whole  of  the  facts  stated  in  the  declaration  ;(/)  but  the  mistake 

may  be  aided  by  verdict. (m)     The  courts  will  also  take  judicial 

notice  of  the  course  of  *proceedings,  in  either  house  of  parlia-  '^•^® 

ment,(«)  but  not  of  the  journals  of  either  house, (o)  which  must 

be  stated  in  pleading  and  proved  in  evidence. (//) 

Public  statutes,  and  the  facts  which  they  ascertain,  must  be 
noticed  by  the  courts,  without  their  being  stated  in  pieading,(r/) 
and  it  is  only  necessary  to  state  facts,  wliich  will  appear  to  the 
court  to  be  affected  by  the  statute, (r)  concluding  in  general  with 
an  express  reference  to  the  statute,  as  by  the  words  "  contrary  to 
"  the  form  of  the  statute,"  &;c.  and  in  the  case  of  a  public  statute, 
it  is  not  advisable  to  recite  any  part  of  it,  for  a  misrecital,  with  a 
conclusion,  "  contrary  to  the  form  of  the  statute  afcrtsaid^' 
would  be  fatal. (.s)  Where  a  statute  has  been  recently  made,  it 
is  said  to  be  necessary  to  allege  that  the  facts  took  place  after 
the  passing  of  tlie  act.(?)  The  courts  will  not  ex  officio  take  no- 
tice o{  private  acts  of  parliament,  and  consequently  such  parts 
of  them  as  may  be  material  to  the  action  or  defence,  must  be 
stated  in  pleading  ■,iu')  and  u  misrecital  of  a  private  act,  can  only 
be  taken  advantage  of  by  plea  o{nul  «>/ record,  or  in  assum/isity- 
under  the  general  *issue,(f )  thou:^h  we  have  seen,  that  if  the  ^  219 
time  or  place  of  holding  the  pttrliament  be  misstated,  it  is  a 
ground  of  demurrer.(w) 

The  courts  are  also  bound  to  take  notice  of  all  Common 
Law  Rights,  and  Duties,  and  of  General  Customs,  and  conse- 
quently these  ought  not   to  be  stated  in  pleading. (.r)     Thus  if 


(I)  Id.  ibid.     Cowp.  474.  T.  R.  "-f..     Bac.  Abr.  Statute,  L.  5. 

(m)  2  Mod.  240.  (0  I  Saund.  309.  n.  5. 

(«)  1  Saund.  1.5f.     Burr.  Sll.  {u)  1  Bi.  Com.  8C.    Ld.  R^ym.  3S1, 

(o)  1  Ld.  Ilaym.  15.  382.     Doug.  97.     Moore,  551.    1  Lev. 

(/))Co\vp.  ir.     Doug.  569.  29C.     Bac.  Abr.  Statutes,  L. 

(?)  1  Bl.  Com.  Dig.  85,  86.     Doug.  {v)  Bac.  Abr.  Statutes,  L.  5.     Ld 

97.  n.  12.     Bac.  Abr.  tit.  Statute,  L.  llsiym.  381.     Cowp.  474. 

2Wils.  376.  (vf)  Ai:te,  Sir      Cowp.  474. 

(r)1T.  R.  145.    Com.  Dig.  Plead-  (.r)  Doug.    1.50.      Ld.   Hnym.    17.' 

er,C.  76.    Lane,  71.  1542.  Carth,  83.  269.     Co.  Lit.  89 

(5)  Ld.  Raym.   382.      Doug.  97.  6  n.  7. 


219  OF  PLEADING 

/.  Tlw  facts  m  a  return  to  a  mundamns  to  restore  a  burgess  of  a  coirpora* 

7lCCtiSSH  I'H        to        • 

fit  slated.  t'°^»  i^  ^^  Stated  that  the  party  was  removed  by  the  corporate 

body  at  large,  il  is  unnecessary  to  aver,  that  the  power  ol  remo- 
val is  vested  in  them,  because  the  courts  will  take  notice  ex  officio^ 
that  by  intendment  of  law>  such  power  exists  in  the  body  at  iar(:i;e, 
unless  it  be  made  appear,  that  it  was  vested  by  charter,  or  other- 
wise, in  a  select  part  of  the  coiporation  ;(z/)  and  it  has  been 
well  observed,  that  in  an  action  against  a  common  carrier  or 
innkeeper  for  the  loss  of  goods,  Sec.  which  is  a  liabiiiiy  founded 
on  the  common  law  or  custom  of  the  realm,  it  is  not  only  un- 
necessary, but  improper,  to  recite  such  custom,  because  it  tends 
to  confound  the  distinction  between  special  customs,  which 
ought  to  be  pleaded,  and  the  general  customs  of  the  realm,  of 
which  the  courts  are  bound  to  take  notice,  without  pleading.(z) 
So  it  is  not  only  unnecessary,  but  improper,  in  a  declaration  on 
*  220  a  bill  of  *exchange,  to  set  out  the  custom  of  merchants,  be- 
cause it  is  part  of  the  law  of  the  land.(«) 

So  the  courts  will  ex  officio  notice  the  £cclcsiastica/,{b)  Ci' 
vil,  aful  Alarim^  Lavjn,(^c)  without  any  statement  of  them  in 
pleading  ;  and  if  there  be  any  misstatement  of  such  laws,  or  of 
facts  affected  by  them,  the  pleading  will  be  held  insufficient  :(rf) 
thus  where  an  administrator  durante  winore  aiate^  in  his  decla- 
ration averred  that  ihe  infant  was  within  the  age  of  twenty-one 
years,  the  declaration  was  holden  bad,  because  the  court  would 
take  notice  that  by  the  ecclesiastical  law,  such  administration 
ceased  at  the  age  of  seventeen,  and  perhaps  the  executor  was 
of  the  age  of  eighteen,  though  not  twenty-one,  as  alleged  in  the 
declaration. (e) 

Such  of  the  Customs  of  Gavelkind  and  Borough  English^  as 
are  of  the  essence  of  the  tenure,  as  the  course  of  descent,  need 
not  be  stated  specially  in  pleading,  nor  should  be   prescribed 


(i')    Doug-.   150.     1    B.   &  P.   too,  -[0?,^.      Carth.   44G.      5    Mod.     3^5. 

Com.  Dig.  Pleader,  C.  7S.  Comb.  475.     12  Mod.  194. 

(:)  Co.  Lit.  89.  a.  11.  7.      .  (c)  2  H.  Bl.  606.  n.  a. 

((/)   Ld.   Kajm.  175.  1542.     Carth.  («')  .Supra,  note  b. 

S3.  le)   Id.   ibid.      5   Co.  29.  a.     Ld. 

{b)    Bro.   Quare   Impcdit,   pi.    12.  Raym.  338.  but  note,  tliis  was  befort 

March.  205.     1  Roll.  Abr.  526.     Cro.  tiic  statute  38  Geo.  III.  c.  S7. 
Eliz.  602.     5  Co.  29.   Ld.  Ra)  m.  338, 


IN  GENERAL.  220 

for,  because  the  common  law  takes  notice  of  them,  and  it  is  suf-  J-   ^''*  /"c« 

'  _  neccasury     to 

ficient  to  state  in  the  pleading,  that  the  land  is  of  the  custom  of  be  ntuted. 
gavelkind,  and  subject  thereto  ;  but  in  regard  toother  customs, 
though  incident  to  these  tenures,   they  must   be  stated.(/) 
*And  the  courts  will  not  ex  officio  take  notice  of  any  fiarticu-  2-1 

lar  local  cuslo?}is,(g-)  nor  of  the  customs  of  London,  except 
where  they  have  been  certified  by  the  recorder,  to  either  of  the 
courts  of  record, (A)  without  which  there  must  be  either  a  plea 
or  an  affidavit  of  the  custom. (0  Thus  where  a  defendant  plead- 
ed, that  his  debt  was  attached  in  London  by  one  of  the  plain- 
tiff''s  creditors,  it  was  decided,  that  the  court  could  not  take  no- 
tice of  the  custom  of  foreign  attachment,  because  it  was  not 
pleaded,  and  consequently,  that  the  plea  was  bad  ;  j)  but  on  a 
writ  of  error  from  the  inferior  court,  the  custom  will  be  no- 
ticed.(A:)  Nor  will  the  courts  ex  officio  take  notice  o{  foreign 
laws,  or  of  the  laws  of  our  Plantations,  and  consequently  they 
must  in  general  be  stated  in  pleading. (/) 

The  courts  take  notice  of  the  days  of  the  nveek,  Ecc.  on  which 
particular  days  fall,  and  the  almanac  is  part  of  the  law  of  the 
land,  having  been  established  by  different  statutes,(m)  and  if 
there  be  a  misstatement  it  will  be  fatal ;(?/)  therefore,  where  a 
writ  of  inquiry  was  slated  in  pleading  to  have  been  executed  on 
the  l5th  oi  June,  which  was  a  ^zmc/rn/,  the  proceeding  was  held 
*def3Ctive  ;(o)  and  where  the  defendant  justified  an  arrest  un-  ^  222 

der  process,  from  an  inferior  court,  which  he  stated  to  be  held 
every  Friday,  and  the  process  appeared  by  the  pleadings  to 
have  been  dated  the  7th  oi  ylugust,  which  was  Saturday,  upon 
demurrer  it  was  held  bad.(//)  So  the  court  will  take  notice, 
what  number  of  days  there  are  in  each  month,(</)  and  in  leap 


(/)  Co.  Lit.    175.    Ij.    n.    4.     Ld.  tjc)  1)  nig.  380.     Salk.  2G9. 

Raym.   1025.     1   Bl.  Com.    7C.    Cro.  (/)  2  East,   273,   274.     Cowp.  174- 

Car.  561.     1  Lev.  79.     2  Bl.  Com.  82,  I6l.     6   Mod.    194,    195.     Salk.   651. 

^>  84.  Burr.   1077.     Rep.  temp.  Haidw.  85. 

{g)  1  Roll.  R('p.  lOG.  4  y.  R.  192. 

(A)  Stra.  187.  11S7.  Doug.  378.  380.  (m)  2  k  3  Edw.  YI.  c.   1.       5  &  6 

aC3.     Aiuir.  304.     1  Bl.  Com.  76.  Edw.  VI.  c.  1.     1  Eiiz.  c.  2. 

0)  Aadr.  504.    Sti-a.  1187-     3  Atk.  (?t)  2  Ld.  Raym.  99i.     6  Mod.  41 

Vi.     Doug.  SC3.  81.     Salk.  181.626. 

(./)  1  Roll.  Rep.  106.    Co.  Ent.  139.  (o)  Fortes.  373.     Stra.  387. 

b.     1  Saund.  142.  a.     1  Snund.  6G.  n.  {!>)   Rep.    temp.    Hardw.    112.      1 

1.     Sed   qtiKre,  the    custom   having;  T.  R.  110. 

Neon  certified.  Doug.  378,  {q)  i  Roll,  Ah.r,  524  C.  nl.  4.    * 


222  OF  PLEADING 

J.  T/ie  facts  year,  and  of  the  movable  feasts,(r)  and  of  the  Teiins,  as  to 

nscessnrt/     to 

ht  stated.  their  commencement  and  conclusion,  whether  movable  or 
not,(6)  and  if  process  be  stated  to  have  been  issued  on  a  day  in 
vacation,  and  that  the  court  was  then  sitting,  the  pleading  will 
be  bad  on  demurrer.(i) 

The  dividon  of  England  into  counties,  will  also  be  noticed 
by  the  court  ex  officio.,  but  not  that  of  particular  liberties,  which 
must  be  stated  in  p)eadinp;,(zi)  and  though  the  courts  will  no- 
tice provinces  and  dioceses,  they  will  not  any  particular  place 
within  each  province  or  diocese,  excepting  that  where  the 
court  sits.(t')  So  the  courts  will  take  judicial  notice  of  what 
towns  are  incorporated,  and  oi"  the  extent  of  ports,  and  of  the 
river  Thames.,  &c.(w) 

The  courts  will  ex  officio  take  notice  of  the  meaning  of  En- 
*  223  glish  words  and  terms  of  art,  according  *to  their  ordinary  ac- 
ceptation, however  vulgar  and  peculiar  to  a  particular  county  or 
place,  and  consequently  the  meaning  of  such  terms  need  not 
in  general  be  averred, (r)  unless  the  intendment  of  law  be  other- 
wise -.{y)  thus  in  an  action  on  the  warranty  of  a  carroom,  it  was 
held  not  necessary  to  aver  what  a  carroom  was,  because  it  was 
a  phrase  then  well  known  in  LondotiXz)  So  in  an  action  for 
words  spoken  in  England^  which  are  slanderous  according  to  the 
phrase  of  the  country  in  which  they  were  uttered,  though  the 
court  may  not  in  fact  know  Avhat  they  signify,  it  is  not  neces- 
sary to  aver  their  signification,  for  the  judges  themselves  will 
take  notice  of  Englinh  words  in  any  county. (a)  The  courts 
will  also  take  notice  of  the  names  and  quantity  of  legal  weights 
and  measures,(6)  and  of  time  according  to  ordinary  expres- 


()•)    6   Mod.    81.     Salk.  626.     Ld.  («)  2  Inst.  .-Jj?.     March.  124. 

IJaym.  994.     The  caleiKhir  hy  wliich  (r)    Ld.   Raym.   854.    1379.     Stra. 

the  courts  go  is  tliat  annexed  to  the  609.     3  T.  R.  387. 

Common  Pl-ayei-  15ouk,  6  Mod.  81.  (w)  Sti-a.  409.     1  H.  Bl.  356,  357. 

(s)  1  Term  Rep.  116.     Ld.  Raym.  (.r)   1  Roll.  Abr.  86.  525. 

329.      Ci-o.  Jac.   548.      2  Lev.    176.  {ij)  4  T.  R.  314. 

Bull.  N.  P.  137.     12  Mod.  647.     Sed  (r)  1  Roll.  Abr.  525.     6  Viii.  Abr. 

vid.  Latch.    11.    US.     1  Sid.  307.     1  492. 

Roll.  Abr.  524.     Dyer,  181.  (a)  1  Roll.  Abr.  86.     I    Vin.  Abr 

(0  5  Burr.  25S6.     3  T.  R.  184.     1  531.     1  Saund.  242.  n.  1. 

Saund.  300.  b.  n.  7.  {b)  1  Roll.  Abr.  525 


IN  GENERAL.  223 

sions.(c)     But  if  the  intendment  of  law  be  different  to  the  state-  ^-  ^^-^  /"^'* 

.  necessary     to 

nicnt  in  tlie  pleadint;,  the  meaning  of  the  term  must  be  sta-  be  fluted. 

led,  and  therefore  it  was  decided,  that  proof  that  the  defend- 
ant agreed  to  sell  so  many  bushels  accordins^  to  a  particular 
measure,  will  not  support  an  allegation  in  a  declaration,  to  sell 
so  many  bushels  generally,  because  bushels,  without  any  other 
explanation,  signify  the  legal  statute  measure  of  a  Jl'inchester 
bushel. (t/) 

Every  court  is  bound  to  take  judicial  notice  *of  its  own  *  224 
course  of  firoccedhigs,(e)  and  of  those  of  the  other  superioi^ 
courts  ;(y"^  and  therefore  in  these  cases,  it  is  not  necessary  in 
pleading,  to  allege  any  usage  or  prescription,  in  support  of 
such  proceeding. (.§•)  So  where  upon  a  motion  in  arrest  of 
judgment,  because  the  declaration  had  not  shewn  out  of  what 
court  a  writ  of  latitat  was  issued,  the  court  said,  that  there  be- 
ing no  wiit  properly  called  a  latitat^  but  what  issues  out  of  the 
King's  Bench,  the  declaration  was  sufficient. (A) 

The  superior  courts  will  also  noiiCG  \\\e  firivileges  they  coTifer 
(jh  their  officer s^'^i)  and  therefore,  though  in  a  plea  of  privilege, 
it  is  usual  to  state  the  custom  of  the  court,  privileging  attornies, 
Sec.  such  statement  appears  unnecessary.  In  Ogle  v.  JVorcliffe^ 
Holt,  Ch.  J.  said,  that  the  privilege  claimed  by  the  defendant, 
was  due  to  the  clerks  of  the  Common  Pleas  of  common  right, 
of  which  the  Court  of  King's  Bench  would  take  notice  -yij)  and 
where  the  customary  privilege  was  mispleaded,  it  being  urged 
for  the  defendant,  that  the  courts  would  take  notice  of  the  privi- 
lege and  reject  as  surplusage  the  custom  which  was  pleaded, 
the  court  said,  that  whatever  they  would  have  done,  had  it  stood 
indifferent,  they  could  not  take  notice  of  a  privilege,  *expressly 
contrary  to  what  the  defendant  had  stated.(^')  '^''*' 

So  the  courts  at  Westminster  will  notice  Courts  of  General 
Jurisdiction,    and  the    course  of  proceedings  therein,  as  that 


(f)  1  Roll.  Abr.  525.    Ld.  Ruym.  (^)  2  Co.  Rcj).  16.  a.    Year  Book, 

'9-i.  2  Rich.  III.  page  9.  pi.  21. 

(</)  4T.  R.  311.  (//)  Ld.  Rnym.  .5'jr. 

■    (*-)  1  T.  R.  118.  2  Lev.  176.  Plowd.  \i)  Ld.  R.iym.  809.  89S. 

145.  103.     1    Roll.    Rep.  106.     Burr.  \j)  Ld.  Raym.  869. 

811.  (k)  Ld.  Raym.  899.  but  see  9  East. 

(./")  2  Co.  Rep.  18.  Cro.  .Tac.  67,  68.  4-2i. 
1  Roll.  Rep.  106.    Sir  W.  Jones,  417. 
Cro.  Car.  527. 


225  OF  PLEADING 

1.  The  facta  there  is  a  Court  of  Exchequer  in  Wales^  and  the  course  of  pro- 

%'^^smed.  *"  ceedings  there,  and  they  will  also  notice  the  jurisdiction  of  the 
courts  of  the  counties  Palatine. (/)  But  it 'has  been  decided, 
that  the  courts  are  not  bound  to  take  notice  who  were  or  arc  the 
judges  of  another  court  at  Westminster,  though  perhaps  they 
ought  to  take  notice  of  the  judges  of  their  own  court  ;(w)  and 
therefore  where  the  authority  of  a  judge  may  be  material  to 
the  action  or  defence,  it  should  be  expressly  stated  in  plead- 
ingjOO  and  in  pleading  a  fine,  the  names  of  the  judges  and 
their  authority  should  be  stated. (o) 

The  superior  couits  will  not  ex  officio  take  notice  of  the  cus- 
toms, laws,  or  proceedings  of  inferior  courts  of  limited  juris- 
diction,{/})  unless  when  reviewing  their  judgments  upon  a  writ 
of  error,  when  for  the  purposes  of  justice  they  must  necessa- 
rily notice  them. (7)  In  a  return  to  a  writ  of  habeas  cor/ius,  in- 
ferior courts  must  in  their  return  set  forth  the  law  or  custom 
of  the  place  by   which  they  justify  their  commitment,  oiher- 

^'  226  wise  the  court  is  *not  bound  to  take  notice  of  it,  but  on  a  writ 
of  error,  it  is  otherwiseC?-) 

2dly.   ■\Vliere    '  Where  the   law  presumes   a   fact,  it  need  not  be  stated  in 

the  law    pre-      ...  ,  .      .  .  ,  p  ,  , 

sumesafact.it  pleading,  and  as  it  is  an  intendment  oi  law,  that  a  person  is 

stated  "°^  innocent  of  fraud,  or  any  other  imputation  affecting  his  repu- 
tation, the  party  insisting  upon  the  contrary,  must  state  it  in 
pleading. (a)  Thus  in  an  action  for  words,  as  for  saying  a  man 
is  a  thief,  the  plaintiff  has  no  occasion  to  aver  that  he  is  not  a 
thief,  and  in  an  action  on  the  case  for  maliciously  suing  out  a 
commission  of  bankrupt,  it  is  not  necessary  to  state  in  the  de- 
claration, that  the  plaintiff  was  not  indebted  to  the  defendant, 
or  that  he  never  committed  an  act  of  bankruptcy  ;(0  and  it  is 
a  rule  applicable  in  some  cases  to  pleading,  that  where  the 
law  presumes  the  affirmative  of  any  fact,  the  negative  of  such 
fact  must  be  proved  by  the  party  averring  it  in  pleading.     So 


(0  1  Ld.  Raym.  154.     1  Saund.  73.  (7)  Cro.  Car.  179.      1  Roll.  Rep. 

C  Mod.  74.    Cro.  Eliz.  502,  503.    Cro.  105. 

Car.  179.     I  Sid.  331.  (r)  Salk.  2G9. 

(m)  Andr.  74.     Slra.  122G.  (s)  Co.  Lit.  78.  b.      Heath's  M.v:. 

00  l<l-'t>id.  ims,  207  to  212. 

(&)  2  Sannd.  175.  n.  2.  (0  2  Wils.  147. 

(/))    1  Roll.  Rep.  105.     Ld.  Raym. 
1334.    Cro.  Eliz.  502.    Salk.  269. 


IN  GENERAL.  22G 

\vhcre  any  act  is  vequircd  to  be  done  by  a  person,  the  omission  i.  The  fach- 
of  which  would  make  him  guilty  of  a  criminal  neglect  of  duty,  '^^7/«/"vf 
the  law  presumes  the  affirmative,  and  throws  the  burthen  of 
proving  tlic  negative  on  the  party  who  insists  on  it.(z^)  And  as 
observed  by  Lord  Coke^  necessary  circumstances  implied  by 
law  need  not  be  expressed,  as  in  the  pica  of  a  feoffment  of  a 
manoi-,  livery  and  attornment  are  implied ;  and  in  pleading  the 
assignment  of  land  for  dower,  it  is  not  necessary  to  say,  that 
it  was  by  metes  and  bounds,  for  it  shall  be  intended  a  lawful 
assignment;  so  in  pleading  *a  sui'render,  the  re-entry  of  the  -■'   227 

lessor  need  not  be  stated,  for  it  shall  be  intended  ;  so  where  it 
is  pleaded,  that  the  sheriff  made  his  "warrant,  it  is  unneces- 
sary to  say  that  it  was  under  his  seal,  for  it  could  not  be 
his  warrant,  if  it  were  not ;  so  if  a  person  plead  that  he  is 
heir  to  ^,  he  need  not  say  either  that  ^^1  is  dead,  or  that  he  had 
no  son;(Ty)  and  in  pleading  an  acceptance  by  a  corporation  of 
an  assignee  of  the  lessee  as  tenant,  it  is  not  necessary  to  shew, 
that  the  acceptance  was  by  deed,  for  an  acceptance  being  plead- 
ed, every  thing  that  would  render  it  a  good  acceptance  is  im- 
plied.(Ty-^  But  great  care  must  be  taken  in  the  application  of 
this  rule,  to  ascertain  that  the  law  intends  the  fact  proposed  to 
be  omitted  ;  thus  in  pleading  a  devise  of  land,  it  must  be 
stated  to  have  been  in  writing,  though  in  point  of  law,  it  could 
not  otherwise  be  a  will  ;(:f)  and  it  is  said,  that  when  the  de- 
fendant pleads,  that  another  person  promised  to  be  answerable 
to  the  plaintiff  for  the  debt,  in  lieu  of  the  defendant,  it  must 
be  shewn  to  have  been  in  writing,  pursuant  to  the  statute  against 
frauds,  so  that  it  may  appear  to  be  such  a  contract  as  the  plain- 
tiff could  enforce .(i/)  So  in  justifying  under  a  writ,  warrant, 
&c.  it  is  not  sufficient  to  allege  generally  that  the  defendant 
committed  the  act  complained  of  by  virtue  of  a  certain  writ, 
or  other  warrant  directed  to  him,  but  he  must  set  it  forth  spe- 
cially.(z)  In  these  cases,  the  law  does  not  intend  *the  validity  *  228 
of  the  will,  the  promise,  or  the  process. 


('0  3 East,  19'2.  (,r)    1  Saund.  275.    a.  n.   2.     Post, 

(,t)  2  Saund.  305.  u.  1,5.  vol.  2.  2,51.  n.  i. 

(tw)  2  Saund.  ?>(Kk  {ij)  Id.  il.id. 

(s)   1  Saund.  298.  n.  I 
VoT..  I.  [211 


228  OF  PLEADING 

/.   The  fact^       It  IS   also   a  general  rule  of  pleadinj^,  that  matter  which 

'be stated      "  ^^^^^^^^  conie  more  properly  from  the  other  side,  nted  not  be 

:^dl.v.  A  p:irty  Stated, («)  unless  in  some  instances  of  pleas  nol  favoured  by  the 

lued  not  Male  courts,  as  a  plea  of  alien  enemy.(A)     I'hus  in  an  action  of  debt, 

is  more   [.ro-  on  a  t>ond  conditioned  that  B  should  remit  all  monies  received 

nerlv     If     be     .  .  ■  •  ■ 

stated  by  the  'P^  ^)  to  C,  or  p^y  the  same  to  him  or  his  order,  as  should  be 

other  sule.  directed,  it  is  sufficient  to  state  a  non-payment  to  C,  and  it  is 
nol  necessary  in  a  replication  to  a  plea  of  general  performance,  to 
allege  any  order  given  by  C,  for  if  any  had  been  given,  it  should 
be  shewn  by  the  defendant. (c)  So  in  astMJtipait  on  a  contract  to 
transfer  slock  to  the  plaintift",  or  his  order  on  request,  the  plain- 
tiff stated  a  request,  and  averred,  that  the  defendant  had  not 
transferred ;  and  on  an  objection  being  taken  that  the  plaintiff 
should  have  averred  that  the  defendant  had  not  paid  to  the  plain* 
tiff's  order,  it  was  overruled,  because  the  averment  of  pay- 
ment to  such  order,  ought  to  come  from  the  other  side  ;(f/) 
and  if  the  plaintiff  allege  a  condition  subsequent  to  his  estate, 
he  need  not  aver  performance,  but  the  breach  must  be  shewn 
by  the  defendant ;  and  matter  in  ch-fiamnce  of  the  action  need 
not  be  staled  ;  and  wherever  there  is  a  circumstance,  the  omis- 
sion of  which  is  to  defeat  the  plaintiff's  right  of  action  firima 

*■  229  facie  well  founded,  whether  *called  by  the  name  of  a  proviso, 
or  a  condition  subsequent,  it  must  in  its  natin-e  be  a  matter  of 
defence,  and  ought  to  be  shewn  in  pleading  by  the  opposite 
party. (r)  In  pleading  upon  statutes,  where  there  is  an  excep- 
tion in  the  enacting  clause,  the  plaintiff  nuist  shew  that  the 
defendant  is  not  within  the  exception,  but  if  there  be  an  excep- 
tion in  a  subsequent  clause,  that  is  matter  of  defence,  and  the 
other  party  must  shew  it  to  exempt  himself  from  the  penalty.(/') 
In  debt  on  an  award,  the  plaintiff  need  not  set  forth  more  of  it 
than  what  makes  for  him,  and  if  there  be  any  thing  by  way  of  con- 
dition precedent,  to  the  payment  of  the  money,  it  is  said,  that 
the  defendant  must  set  it  out  in  pleading  ;(£'•)  but  in  debt  upon 


(o)   Com.  Di.^.  Pleader,  C.  81.      2  (e)   Per  Ashhurst,  J.    I  T.  R.  645, 

Saund.  G2.  b.      8  T.  R.  \<b7.     2  Wils.  646.     Com.  Dig.  Pleader,  C.  81. 

147.     5T.  R.61.5.  (/)    1  T.  R.  144,  145.     Bac.  Abr. 

(J))  8  T.  R.  I6r.  Statute,  L.      6  T.   R.    559.      1  East, 

(c)  1  T.  R.  485.  C46,  64" 

(r/)  Ld.  Raym.  (yJo.  114.  247.  989.  (5-)  2  Sauud.  62.  b. 


IN  GENERAL.  229 

a  bond  to  perform  an  award,   it  is  necessary  to  set  fuilh  the  /   The  facta 
whole  award  in  the  replication.(/0  E!S     *" 

Though  the  general  rule  is  that  facts  only  are  to  be  stated,  4t!iiy.  State- 
yet  there  are  some  instances  in  whj';h  the  statement  in  the  gj-ilons*  ^^^^^ 
pleading  is  correct  though  it  does  not  accord  wiih  the  real  facts, 
the  law  allowing  a  fiction  ;  as  in  the  action  of  ejectment,  in 
which  the  statement  of  the  demise  to  the  nominil  plaintiff  is 
fictitious. (/)  So  in  trover  or  detinue,  the  usual  allegation  that 
the  defendant  found  the  goods,  rarely  accoi-ds  with  the  fact  ;(_/') 
and  Avhere  the  number,  qu-;nlity,  species,  or  value  of  a  thing, 
need  not  be    proved  precisely   as   Lid    it    is  usual  *to  state  a  *   230 

greater  number,  than  really  was  the  Cuse,  in  order  to  admit  of 
greater  latitude  in  evidence  ;  but  except  in  tliese,  and  a  few 
other  instances,  where  it  may  be  consistent  with  the  justice  of 
the  case,  the  pleading  matter  known  to  the  party  to  be  untrue, 
is  in  general  censured. (X:) 

At  common  law  it  was  a  general  rule,  equally  r.ffecling  sthly.  Of  Du« 
declarations,  pleas,  replications,  8cc.  that  the  pleading  must  ^"^"''' 
not  be  double^  that  is,  that  no  single  count  or  plea,  should 
state  two  or  more  facts,  either  of  which  would  of  itself,  inde- 
pendently of  the  other,  constitute  a  sufficient  ground  of  action 
or  defence  ;  a  rule  founded  on  the  principle,  that  it  would  be 
unnecessary  and  vexatious  to  put  the  opposite  party  to  litigate 
and  prove  two  points,  when  one  would  be  sufficient  to  establish 
the  matter  in  issue//)  Thus  at  common  law  in  a  declaration 
upon  a  bond,  the  plaintiff  could  not  assign  two  breaches  of  the 
condition,  because  the  bond  was  forfeited  by  one  breach,  which 
was  sufficient  to  support  his  action,  though  in  covenant  several 
breaches  of  dilferent  covenants  might  be  stated.' w)  So  in  a 
plea  of  outlawry,  the  defendant  cannot  state  several  outlawries, 
because  one  would  be  sufficient  to  defeat  the  action  ;{n)  and  on 
the  same  ground  there  cjnnot  be  a  demurrer  and  a  plea  to  the 


(A)  Id.  ibi.l.  Pleas,  K.   2,  3.       Heath's  Maxims, 

(0  2  Burr.  667,  668.  134. 

(.;■)    Ante,   148.     1  New  Rep.  140.  (m)  Com.  Dig.  Pleader,    C.  .^3.     2 

{k)    Rac.  Abr.  Pleader,    G.  4.      I  Vent.  19S.        1  Roll,  112.      1  Saund, 

East,  372.  158.11.  1.     llearli's  Maxims,  135 

(/)     Co.  Lit.  304.  a.    Com.  Dig.  (n)  Carth  0. 
Pleader,    C.  33.  E.  2.      Bac.   Abr 


231*  OF  PLEADING 

/.   The  facfs  same  pail  of  a  declaration  or  plea,  *biC.{o)     By  different  sta-* 

/.'^"^'T'v'     ^°  tules  the  common  law  has  been  altered  in  recard  to  dcclurutions 

be  slated.  *^ 

on  bonds  and  for  penalties,(/?)  and  to  several  distinct  pleas  and 
avowries,  and  pleas  in  bar  thereto  •,{q')  but  the  common  law 
rule  still  affects  each  plea  taken  separately.  The  rules  as  to 
duplicity  will  be  more  fully  stated  hereafter,  when  we  con- 
sider the  particular  qualities  of  each  part  of  pleadint;. 

Oihly.  Objcc-  The  statement  of  immaterial  or  irrelevant  matter  or  allega- 
tions to  unne-  ...  ,  .  ,  . 
cissaiv  statu-  tions,  IS  not  only  censured  as  creating  unnecessary  expense, (»") 

mciits.  j^^j^  ^j^Q  frequently  affords  an   advantage  to  the  opposite  p^rty, 

either  as  a  ground  of  variance,  or  as  rendering  it  incumbent  on 
the  parly  pleading  to  adduce  more  evidence  than  would  other- 
wise have  been  necessary ;  and  therefore,  it  is  of  the  greatest 
importance  in  pleading,  to  avoid  any  unnecessary  statement  of 
facts,  as  well  as  prolixity  in  the  statement  of  those  which  may 
be  necessary. (s)  Thus  where  a  party  takes  upon  himself  to 
state  in  any  pleading  a  substantive  averment,  or  to  allege  a  pre- 
cise estate,  which  he  is  not  bound  to  do,  if  they  are  material  and 
bear  on  the  question,  he  gives  tiie  other  side  an  advantage  of 
traversing  them  ;  as  if  in  an  avowry  damage  feasant^  in  which 
it  is  sufficient  to  state  that  the  close  WiiS  the  party 'sy)t'f/jo/rf,  if 
he  unnecessarily  state  a  seisin  in  fee,  though  a  less  estate  would 

*  232  suffice,  and  the  other  side  traverse  the  allegation,  it  must  *be 
proved  as  stated. (i')  So  if  in  an  action  on  the  case  against  the 
sheriff,  for  levying  under  an  execution  against  the  tenant,  with- 
out paying  the  landlord  a  year's  rent,  if  the  plaintiff,  though 
unnecessarily,  profess  to  set  out  the  terms  of  the  tenancy  as  to 
the  time  of  payment  of  rent,  kc.  and  misdescribe  them,  the  va- 
riance will  be  fatal,  and  contracts  in  particular  must  be  accu- 
rately stated. (m)  The  instances  of  variances  will  be  more  fully- 
stated  in  the  next  chapter. 

■;iiil>.  SuiKir-       If>  however,  the  matter  unnecessarily  stated,  be  wholly  fo- 

tii!;ty  and  re-  j.^joa  and  impertinent  to  the  cause,  so  that  no  allegation  what- 

pugnancy.  i 


(o)  Bac.  Abr.  K.  1.1  (.^)  2  Saimd.  200,  207.  n.  22.  Doug. 

(/))    8&9Wm.  III.    c.  11.  s.  S.     I  COS.     1  Saunil.  233.  n.  2.     2  Saund. 

Saund.  58.  n.  1.  36t). 

(<7)  4  Ann.  c.  IG.  (<)  Id  ibid.     H.  Bl.  54. 

()•)  CoNvp.  CG5.  727.    Doug,   6G8,        [ti)  S  East,  9.     Doug.  665  to  6()? 

869.  See  post,  as  to  vancmces, 


IN  GENERAL.  232 

evev  on  the  subject  was  necessary,  it  will  be  rejected  as  sur-  J-  ^'''*?  /«c/-9 

,  ,  ,  .,,...  •    1     •  necesscm/  io 

plusage,  and  it  need  not  be  proved,  nor  will  it  vitiate,  it  being  a  (,e  stated 
maxim,  that  utile  per  inutile  non  -vitiatur  :(y')  except  where 
by  the  unnecessary  allegation  the  plahitiff  shews  that  he  has 
no  cause  of  action. (w)  Thus  in  trespass  for  driving  cattle, 
where  the  defendant  justified,  that  he  was  lawfully  possessed 
of  the  close  and  took  the  cattle  damage  feasant  therein,  and  the 
plaintiff  replied  specially  title  in  another,  and  that  he  entered 
by  his  command,  and  unnecessarily  gave  colour  to  the  defend- 
ant, it  was  decided  that  this  did  not  render  the  replication  insuf- 
ficient because  the  introduction  of  unnecessary  words  of  form, 
will  not  vitiate  the  rest  of  a  replication  which  is  good.(x)  As 
observed  by  Lord  Manajield^  "  the  *distinction  is,  between  that  ^  233 
"  which  may  be  rejected  as  surplusage,  which  might  be 
"  struck  out  on  motion,  and  what  cannot ;  when  the  declara- 
"  tion  contains  impertinent  matter,  foreign  to  the  cause,  and 
"  which  the  master  on  a  reference  to  him,  would  strike  out, 
"  that  will  be  rejected  by  the  court,  and  need  not  be  proved ; 
"  but  if  the  very  ground  of  the  action  be  misstated,  that  will  be 
'<  fatal,  for  then  the  case  declared  on,  is  different  from  that 
"  which  is  proved,  and  the  plaintiff  must  recover  secundum  al- 
"  kgata  et  probata  ;  the  distinction  is  between  immaterial  and 
"  impertinent  averments,  the  former  must  be  proved,  be- 
"  cause  relative  to  the  point  in  question. "(i/) 

So  though  the  superfluous  allegation  be  repugnant  to  what 
was  before  alleged,  it  is  void  and  will  be  rejected,  and  what- 
ever is  redundant,  and  which  need  not  have  been  put  into 
the  sentence,  and  contradicting  what  was  before  alleged,  will 
not  in  general  vitiate  the  pleading  ;(r)  for,  per  Holt,  Ch.  J. 
where  matter  is  nonsense,  by  being  contradictory,  and  repug- 
nant to  something  precedent,  there  the  precedent  matter 
which  is  sense,  shall  not  be  defeated  by  the  repugnancy 
which    follows,    but  that  which  is  contradictory  shall  be   re 


{v)  4  East,  400.     Gilb.  C.  P.  131,  (x)  Pcv  Lavvee,  J.  1  East,  219. 

152.    Com.  Dig.  Pleader,  C.  28.    Bac.  {ij)  Per  Ld.  MaiisSeld,  Doug.  66" 

Abr.  Pleas,  1.  4.     Co.   Lit.  303.  b.     2  2  Bl.  Rep.  842.     4  East,  400. 

Saund.    30C.  n.    14.      5    East,    444.  (r)  Gilb  0  P.    131,  3  32.     Co.  Lit 

Heath's  Maxims,  4.  303    b. 

(-.y)  Com.  Dig.    Pleader.    C   20 
Bac.  Abr.  Pica?,  1  4 


^33  OF  PLEADING 

/  The  facts  jected  ;  as  in  ejectment,  where  the  declaration  is  of  a  demise 

\iecessuyii     to 

be  slated.  the  second  o^  January,  and  that  the  defendant /^o.s-^^a  scilicet  on 

the  Jirst  of  January,  ejected  him,  here  the  scilicft  may  be  re- 
*  234  jected  as  being  expressly  contrary  to  the  fwstea  and  *thc  pre- 
■  cedent  matter  ;(a)  but  a  material  alleviation,  sensible  and  con- 
sistent in  the  place  where  it  occurs,  and  not  repui^nani  to  any 
antecedent  matter,  cannot  be  rejected,  merely  on  account  of  there 
occurring  afterwards  in  the  same  pleading  another  allegation 
inconsistent  with  the  former,  and  wliich  latter  allegation  cannot 
itself  be  rejected  ;(d)  and  if  by  the  rejection  of  ihe  repugnant 
matter,  the  pleading  would  be  kit  without  an  allegation  of  lime, 
or  other  material  matter,  though  in  some  instances  the  plead- 
ing might  be  aided  by  verdict,  yet  it  would  be  defective  on  spe- 
cial dcmurrcr.(c)  And  when,  by  the  introduction  of  super- 
.fluous  matter,  it  appears  that  the  defendant  had  no  cause  of 
action,  it  is  fatal,  as  if  in  an  action  on  the  case  for  a  disturbiince,in 
which  possession  is  a  sufficient  title  for  the  plaintiff,  if  he  shew 
a  title,  and  it  appears  insufficient,  the  declaration  is  bad.(rf)  So 
if  in  a  plea  of  piivilcgc  as  an  attorney  of  the  Common  Pleas, 
the  customary  privilege  be  improperly  stated,  though  ii  might 
have  been  omitted,  being  matter  of  law  judicially  taken  notice 
of,  the  court  will  not  reject  the  statement  of  the  custom  as  sur- 
plusage, but  will  give  judgment  against  the  plea.(e) 


,fc.    o"-  J^  T'///:  MODE  OF  ST.iTLVG  THE  FACTS. 

II.  Mode  of       Having  considered  nvhat  facts  are  to  be  stated  in  pleading, 
ttatinsr  facts.  ,  ...  ,       ,-         ,  ti      ■■ 

"  we  have  novv  to  consider  the  mode  cj  &uc/i  statement.    Ihelacts 

which  constitute  the  cause  of  action,  or  ground  of  defence, 
should  be  stated  logically  in  their  natural  order ;  as  on  the  part 
of  the  plaintifl",  his  right,  the  injury,  and  the  consequent  da- 
mage, and  these  with  certainty,  precision,  and  brevity. (/")  With 
regard  to  the  language  to  be  adopted,  as  observed  by  Lord 


(a)  5  East,  255.     1  Salk.  3-24,  325.         (e)  Ld.  Raym.  S'jS.     Ante,  224. 
(6)  5  East,  254.  (/" )  Doug.  d6G,  667.  Sir  W.  Jones, 

is)  Gilb.  C.  P.  132,  133.  vol.  4.  p.  34.  4to  edit. 

\d)   1    Salk.  363.  365.    Com.  Dig. 
Pleader,  C.  29. 


IN  GENERAL.  235 

Ch  J  De  Grey,  there  are  cases,  where  a  direct  and  positive  It    '^^orle  of 

.  St  CI  tin  J  facts. 

averment  is  necessary  to  be  made  in  specific  terms,  as  where 
the  law  has  affixed  and  appropriated  technical  terms  to  de- 
scribe a  crime,  as  in  murder,  burglary,  and  others,  so  in  tres- 
pass, the  words  vi  et  armis,  and  contra  fiacem  are  necessary : 
but  except  in  particular  cases,  where  pi'ecise  technical  expres- 
sions are  required  to  be  used,  there  is  no  rule  of  law  that  other 
words  should  be  employed,  than  such  as  are  in  ordinary  useA^) 
Thus,  though  in  a  declaration  for  slander,  it  is  usual  to  st«ie  that 
the  words  were  "  maliciously"  spoken,  the  word  "  falsely"  has 
been  held  to  be  sufficiently  expressive  of  a  malicious  intent.(/;) 
However,  where  there  has  been  a  long  established  form  of 
pleading,  applicable  to  the  facts  of  the  particular  case,  it  should 
in  general,  for  the  sake  of  certainty  and  uniformity  be  adopted, 
and  *the  courts  censure  any  unnecessary  deviation  from  it ;(?)  ^  236 
and  as  observed  by  Lord  Coke^  it  is  safer  to  follow  good  prece- 
dents, for  nihil  dmul  inventum  est,  et  iierfectum.{k~) 

The  principal  rule,  as  to  the  mode  of  stating  the  facts  is,  that 
Xhey  must  be  set  forth  with  certainty  ;(/)  by  which  term  is  sig- 
nified, a  clear  and  distinct  statement  of  the  facts,  which  consti- 
tute the  cause  of  action  or  ground  of  defence,  so  that  they  may 
be  understood  by  the  party  who  is  to  answer  them,  by  the  jury 
who  are  to  ascertain  the  truth  of  the  allegations,  and  by  the  court 
who  are  to  give  judgment.(/rt) 

In  Dovaston  v.  Fayne,{ii)  Mr,  Justice  Buller  observed,  that 
certainty  or  precision  in  pleading,  has  been  stated  by  Lord  Coke 
to  be  of  three  sorts,  viz.  1  st.  Certainty  to  a  common  intent ;  2dly. 
To  a  certain  intent  in  general ;  3diy.  To  a  certain  intent  in  every 
particular  ;  and  that  though  these  distinctions  had  been  treated 


(^)   Cowp.  68.3.     5  Enst,  259,260.  have  no  precise  i<lea  of  the  significa- 

2  East,  33.    '2  Bl.  Rep.  843.  lion  of  the  term    "  certainty,"  which 

(/i)  1  Saund.  ivl.  a.  n.  2.  is  as  indefinite  in  itself  as  any  word 

{i)  Co.  Lit.  30.3.  a.  b.     1   Hale,   C.  that  can  be  used. 

L.  301,302.     6   East,  351,    552,  353.  (m)  <"-o\v-p.  682.     Com.  Dig.  Plead- 

And  see  ante,  85,  86.  er,  C.  17.     Co.  Lit.  303.     2  B.   &£  P 

(k)  Co.  Lit.  230.  «.  207. 

(0  Cowp.  682.    Hob.  295.     It   was  (/()  2  H.  Bl.  550.     SEast,  467.  257 

observed  by  Ld.   C.  J.  De  Grey,  iu  259.     Doug.  158. 
Rex.  V.  Home,  Cowp.  682.  that  we 


236  ^F  PLEADING 

JI.  Mode  of  as  a  jargon  of  words  -without  meaning,  they  had  long  been  made  < 

stating  Jacts.  ^^^  ought  not  altogether  to  be  departed  from. 

By  certainty  to  a  common  intent.,  is  to  be  understood,  that 
when  words  are  used,  which  will  bear  a  natural  sense,  and  also 
an  artificial  one,  or  one  to  be  made  out  by  argument  or  infer- 
ence, the  natural  sense  shall  prevail ;  it  is  simply  a  rule  of  con- 

*  237  struction,  *and  not  of  addition  ;  common  intent  cannot  add  to  a 
sentence  words  which  are  omitted.  This  description  of  cer- 
tainty, is  sufficient  in  a  plea  in  bar.(^)  It  is  of  the  lowest  de- 
gree, and  yet  we  shall  find,  that  in  some  instances,  a  statement 
which  would  suffice  in  a  declaration,  will  not  in  a  plea ;  thus  in 
a  declaration  on  a  contract,  to  pay  the  debt  of  a  third  person, 
it  is  not  necessary  to  shew  that  it  was  in  writing,  but  it  is  other- 
wise in  a  plea  ;(/)  and  in  a  plea,  the  statement  of  a  deed  by 
way  of  recital  "  testatum  cxistit"  instead  of  a  direct  allega- 
tion is  insufficient,  though  it  is  otherwise  in  a  declaration. (m) 

Certainly  to  a  certain  ititent  in  general  is  a  greater  degree  of 
certainty  than  the  last,  and  means  what  upon  a  fair  and  rea- 
sonable construction  may  be  called  certain,  without  recurring 
to  possible  facts  which  do  not  appear,  and  is  what  is  required  in 
declarations,  replications,  and  indictments  in  the  charge  or  ac- 
cusation, and  in  returns  to  writs  of  mandamus  ;(n)  the  charge 
we  have  seen,  must  contain  such  a  description  of  the  crime, 
Sec.  that  without  intending  any  thing  but  what  appears,  the  de- 
fendant may  know  what  he  is  to  answer,  and  what  is  intended 
to  be  proved,  in  order  that  the  jury  may  be  warranted  in  their 
verdict,  and  the  court  in  the  judgment  they  are  to  give.(o) 

jjv   Qnp  The  third  degree  of  certainty,  is  that  which  *precludes  all 

argument,  inference,  or  presumption  against  the  party  plead- 
ing,Co)  and  as  it  has  been  well  expressed,  is  that  technical  ac- 
curacy, which  is  not  liable  to  the  most  subtle  and  scrupulous 
objection,  so  that  it  is  not  merely  a  rule  of  consti'uction,  but  of 
addition  ;  for  when  this  certainty  is  necessary,  the  party  must 


(A)    2  H.  Bl.  530.        Cowp.  682.—  (m)  1  Saund.  274.  n.  1. 

Doug.  158.     1  Saund.  49.  n.  1.     5  Co.  («)  I  Doug.  159.    1  Saund.  49.  n.  t, 

121.      Co.  Lit.  ■  303.   a.      Com.   Dig.  Heath's  ]Ma.\ims,  3. 

rieader,  C.  17.    6  Mod.  117.    Heath's  (o)  Cowp.  682. 

Maxims,  3.  (»)  Co.  Lit.  552.  b.     Doug.  15? 

(/)  1  SuuivJ.  276.  a.  n.  2. 


IN  GENERAL.  238 

not  only  state  the  facts  of  his  case,  in  the  most  precise  way,  IT.  Mode  tf 
but  add  to  them  such  facts,  as  shew  that  they  are  not  to  be 
controverted,  and  as  it  were,  anticipate  the  case  of  his  adver- 
sary.(/0  It  has  been  said,  that  this  description  of  certainty 
has  been  rejected  in  all  cases,  as  partaking  of  too  much  sub- 
tlety ;(y)  however,  £  idler,  J.  expressed  a  difierent  opinion, 
and  it  appears,  that  it  obtains  in  the  case  of  estoppels, ('")  and 
in  pleas,  which  are  not  favoured  in  law,  such  as  the  plea  of 
alien  enemy,  in  which  it  must  be  stated,  not  only  that  the 
plaintiff  is  an  alien,  but  that  he  came  to  Eni^land  without  let- 
ters of  safe  conduct  from  our  King.(s) 

The  application  of  the  rules  as  to  the  necessary  certainty  in 
the  various  parts  of  pleadings,  will  be  better  considered,  when 
the  qualities  of  the  declaration,  and  other  parts  of  pleading  are 
stated. 

Less  certainty  is  requisite,  when  the  law  presumes,  that  the 
knowledge  of  the  facts  is  in  the  opposite  party,  because  the 
principal  object  of  pleading  is,  to  state  facts  of  which  the 
other  *party  is  not  supposed  to  be  cognisant ;  and,  therefore,  *  239 
where  in  an  action  on  the  case  for  not  repairing  a  private  road 
leading  through  the  defendant's  ground,  the  declaration  stated 
that  the  defendant  by  reason  of  his  possession,  ought  to  have 
repaired.  Sec.  on  general  demurrer  it  was  objected  that  it  did 
not  shew  by  what  right  or  obligation  the  defendant  was  bound 
to  repair,  and  that  he  was  not  bound  of  common  right  merely 
as  an  occupier,  but  the  court  held  that  the  declaration  was  suf- 
ficient, and  Bul/er,  J.  said,  the  distinction  is  between  cases, 
where  the  plaintiff  lays  a  charge  upon  the  right  of  the  defend- 
ant, and  where  the  defendant  himself  prescribes  in  right  of 
his  own  estate  ;  in  the  former  case  the  plaintiff  is  presumed  to 
be  ignorant  of  the  defendant's  title,  and  cannot  therefore,  plead 
it,  but  in  the  latter,  the  defendant  knowing  his  own  estate,  in 
right  of  which  he  claims  a  privilege,  must  set  foi"th  such  es- 
tate.(0     bo  less  certainty  is  required,  and  general  words  are' 


ip)  Lawes  on  Plejidiiig,  54,  55.  (s)  8  T.  R.  167. 

(9)  Cowp.  68'2.  (t)  3  T.  R.rer.    Com.  Dig.  Plead- 

(r)  2  H.  Bl.  530.    Doug.  1.59.  Com-  ^r,  C.  26.  42.     C».  Lit.  304. 
Dig.  Estoppel,  E.  4    Co  Lit.  352.  b. 

Vol,  I.  r  2?  1 


239  OF  PLEADING 

U.   Mndf  of  sufficient,  where  it  is  to  be  presumed,  that  the  party  pleading 

stuiin^  jucu.  -y  ^^^  privy  to  the  minute  circunistances  ;  ^hus,  where  a  per- 
son's house  is  burnt,  general  words  are  sufficient  in  the  de- 
scription of  the  loss,  because  he  is  not  presumed  to  be  able  to 
set  forth  with  certainty  the  goods  destroyed  ;(ii)  but  in  a  de- 
claration on  the  statute  of  liue  and  cry,  the  plainiifl"  must  state 
the  particulars  of  his  goods  taken. (t') 

*'   240  *^^  ^^  '-^^^^  ^  ^'^^^  "^  pleading,  that  in  general,  where  a  sub- 

ject comprehends  multiplicity  of  matter,  there,  in  order  lo 
avoid  prolixity,  the  law  allows  general  pleading  ;(w)  but  as 
there  are  many  instances  in  which  this  rule  does  not  apply,  es- 
pecially in  justifications  of  slander,  and  in  pleas  of  perform- 
ance, we  will  hereafter  consider  the  rule,  in  its  application  to 
the  particular  parts  of  pleading. 

When  the  facts  are  not  really  stated  with  sufficient  certainty, 
the  introduction  of  the  word  "  certain,"  is  of  no  avail ;  thus  a 
declaration  in  debt  for  a  sum  of  money  forfeited  "  by  virtue  of 
''  a  certain  by-law,"  or  for  money  due  "  on  a  certain  bond," 
without  stating  it,  is  insufficient  ;(a:)  so  a  special  declaration  in 
assumpsit  for  wages  in  consideration  that  the  plaintiff  would  go 
"  a  certain  voyage,"  without  staling  it  ;(i/)  so  where  the  de- 
claration stated,  that  in  consideration  that  the  plaintiff  had  sold 
to  the  defendant  a  "  certain  horse"  of  the  plaintiff,  at  and  for 
*'  a  certain  quantity  of  certain  oil,"  to  be  delivered  within  "  a 
"  certain  time,"  which  had  elapsed,  though  it  was  holden  to 
be  aided  by  verdict,  it  would  have  been  bad  on  demurrer  ;(::) 
and  a  justification  in  trespass,  "  by  virtue  of  a  certain  writ," 
Sec.  but  not  setting  it  forth,  is  insufficient. (a)  So  the  w^ords 
"  duly,"    "  lawfully,"    "  sufficient,"    Stc.  without  shewing  the 

*   24J  *matter  of  fact,  are  seldom  of  avail  in  pleading  i(Z>)  though  in 

some  cases  the  statement  that  the  defendant  "  unlawfully"  or 
"  unjustly,"  SiC.  did   the  wrong  complained  of,  without   shew- 


(m)  I  Kcb.  8'25.      Plowd.  85.     1  H.  Pleader,  C.  4-2.  E.  26.  2.  V.  13.       Co 

Bl.  '284.     Sed  vide  2  Sauiid.  S7'J.  Lit.  30.5.  b.  3ui. 

(■t)  2Suund.  379.  (.r)  I  B.  k  1'.  100.  102. 

Iw)    2  Saund.   117.  n.  1.  411.  n.  4.  {(/)  2  B.  h  P.  120. 

8  T.  R.  462.      1  Sauiid.  UO,  117.  n.  1.  (:)  2  B.  isi  P.  2r)5. 

B:i<:.  Abr.    Plea-s,    I.  3.      (Join.   Di-.  (a)  1  Saund.  2liS.  n.  1.    Ante,  237. 

(b)  9  Co.  25.  a. 


IN  GENERAL.  Mi 

ing  the  particular  acts,  may  be  sufficient  to  designate  that  to  be  U.  J\-ln<h^   of 

,  .    ,  .     ,  ,  •  1     •     j-n'  statiu'J  fucU:- 

a  crime  or  injury,  which  might  otheiwise  stand  inditterent  ; 
as  in  an  action  on  the  case  for  enticing  and  procuring  a  wife  to 
leave  her  husband. (c) 

III.  RULES  OF  CO.rSTRUCTlOX. 

It  is  a  maxim  in   pleading  that  every  thing  shall  be  taken  IJI.  Riilei>  of 
,  .  ,  !       ,•        .^  ^^  1  IT  construciiun. 

most  strongly  against  the  party  pleading, (a)  or  rather,  that  it 

the  meaning  of  the  words  be  equivocal,  they  shall  be  construed 

most  strongly  against  the  party  pleading  them  ;(r)  for  it  is  to  be 

intended,  that  every  person  states  his  case  as  favourably  to  himself 

as  possible. (/")  But  in  applying  this  maxim,  the  other  rules  must 

be  kept  in  view,  and  particularly  those  relating  to  the  facts,  of 

which  the  courts  will  ex  officio  take  notice,  without  their  being 

stated  in  pleading  •,(g)  and  the  maxim  itself  must  be  received 

with  some  qualification,  for  the  language  of  the  pleading  is  to 

have  a  reasonable  intendment  and  construction  ;{/i)  and  where 

a  matter  is  capable  *of  different  meanings,  that  shall  be  taken  ^   242 

which  will  support  the  declaration,  Sec.  and  not  the  other,  which 

would  defeat  it.(0 

But  the  matter  must  be  capable  of  different  meanings  ;  for 
the  court  cannot,  in  order  to  support  the  proceeding,  in  which 
the  particular  term  occurs,  arbitrarily  give  it  a  meaning  against 
which  the  use,  habits,  and  understanding  of  mankind,  would 
plainly  revolt.  But  if  it  be  clearly  cafiable  of  different  mean- 
ings, it  does  not  appear  to  clash  with  any  rule  of  construction, 
applied  even  to  criminal  proceedings,  to  construe  it  in  that 
sense  in  which  the  party  framing  the  criminal  charge  must 
be  understood  to  have  used  it,  if  he  intended  that  his  charge 
should   be   consistent  with   itself.(y)     Every   indictment,  &c. 


(c)  ■Willfs,  .'5S5.  (A)    Com.  Dig.    Pleader,  C.  25.— 

{(!)  1  Saund.  '259.  n.  8.      2  C.  k  P.  1  Lev.  190. 
155.     4Kast,  X\3.  (/)   1  Salk.  325.     5  East,  25r. 

(e)  Per  Buller,  .1.  2  H.  151.  530.  (.;")    Per  Ld.  Elkn borough,  Ch.  J 

(/)  Co.  Lit.  M).^.  b.  5  East,  257.  aad  id.  463. 
(  /)  Ante,  217  to  229. 


242  OF  PLEADING 

///.  Rules  of  ought  to  contain  a  complete  description  of  such  facts  and  cir- 
ionstniction.  .  ,  .  „  ... 

cumstances  as  constitute  the  crime,  8cc.  without  inconsistency 

or  repugnancy  ;  but  except  in  particular  cases  where  precise 
technical  expressions  are  required  to  be  used,  there  is  no  rule 
that  other  words  shall  be  employed  than  such  as  are  in  ordinary 
use,  or  that  in  indictments  or  other  pleadings,  a  different  sense 
is  to  be  put  upon  them  than  what  they  bear  in  ordinary  accep- 
tation ;  and  if,  where  the  sense  may  be  ambiguous,  it  is  suffi- 
ciently marked  by  the  context  or  other  means  in  what  sense 
they  are  intended  to  be  used,  no  objection  can  be  made  on  the 
ground  of  re/atg/iancyj  which  only  exists  where  a  sense  is  an- 
■*  243  nexed  to  words  which  is  either  absolutely  inconsistent  *there- 
with,  or  being  apparently  so,  is  not  accompanied  by  any  thing 
to  explain  or  define  them.  If  the  sense  be  clear,  nice  excep- 
tions ought  not  to  be  regarded. (X:)  It  is  also  a  rule  relating  to 
the  mode  of  stating  facts,  and  the  form  of  the  pleading  on 
cither  side,  that  the  court  are  ex  officio  bound  to  give  such 
judgment  as  appears  upon  the  av hole  record  to  be  proper,  with- 
out regard  to  the  issues  found  or  confessed,  or  to  any  imper- 
fection in  the  prayer  of  judgment  on  either  side  ;(/)  and  on  the 
same  ground  we  shall  hereafter  see  that  when  there  is  a  de- 
murrer to  a  plea,  replication,  &c.  if  the  prior  pleading  be  de- 
fective in  substance,  judgment  will  be  given  against  the  party 
pleading  it. 


IV.  njrisioj\i'  OF  pleadlxgs. 

IV.  Division       The  Jiarts  of  pleading  have  been  considered  as  arrangeable 
of  peac  ngs.  ^j^j^p  j^^.q  heads ;  y?rs?.  The  regular,  being  those  which  occur 

in  the  ordinary  course  of  a  suit ;  and,  secondly.  The  irregular, 

or  collateral,  being  those  which  are  occasioned  by  mistakes  in 

the  pleadings  on  either  side.(??i) 

The  regular  parts  are,   1st.  The  declaration  or  count.     2dly. 

The  Jilea,  which  is  either  to  tlie  jurisdiction  of  the  court,  or 


(/')  Per  Ld.  Ellenborough,  Ch.  J.        (m)    Vin.  Abr.  Pleas  and  Plead- 
5  East,  259,  260.     2  East,  33.  ing,  C. 

(0  4  East,  502.    5  East,  270,  271, 


IN  GENERAL.  24S 

suspending  the  action,  as  in  the  case  of  parol  demurrer,  or  in  TV.  Division 

^  ......  of  pleadings. 

•abatement,  or  in  bar  of  tlie  action,(")  or  m  replevin,  an  avow-  "^  244 
ry  or  cognisance.  3dly.  The  refilication,  and  in  case  of  an 
evasive  plea,  a  new  assignment^  or  in  replevin  the  filea  in  bar 
to  the  avowry  or  cognisance.  4thly.  The  rejoinder^  or  in  re- 
plevin, the  replication  to  the  plea  in  bar.  5thly.  The  surre- 
joinder^ being  in  replevin,  the  rejoinder.  6thly.  The  rebutter. 
7thly.  The  surrebut ter^^^o)  and  8thly.  Pleas  fiuis  darrein  con- 
tinuance,  where  the  matter  of  defence  arises  fiending  the  suit. 
The  irregular  or  collateral  parts  of  pleading,  are  stated  to 
be,(/2)  1st.  Demurrers  to  any  part  of  the  pleadings  above  men- 
tioned. 2dly.  Deiiiurrers  to  evidence  given  at  trials.  3dly. 
Bills  of  Exceptions.  4thly.  Pleas  in  Scire  Facias.  And,  5thly. 
Pleas  in  Error.^q)  The  particular  nature  of  each  of  these 
parts  of  pleading,  together  with  the  claim  of  conusance^  de- 
mand of  oyer,  and  imfiarlances,  &c.  will  be  considered  in  the 
following  chapters. 


(n)  Id.  ibid.    Bac.  Abr.  Pleas  and        {p)  Vin.  Abr.  Pleas  and  Pleading, 
Pleading,  A.  C. 

(0)    Vin.  Abr.  Pleas  and  Pleading,        (y)  Id.  ibid. 
C.    Bac.  Abr.  Pleas  and  Pleading,  A. 


*245 


CHAPTER  IV. 


or  THE  rR-EcirE  and  declaration-. 


&f  the  Proi-  VV  HEN  the  plaintiff  commences  his  action  by  s/jfc/«/on5-///(i/ 
writ,  which  when  the  action  is  for  a  money  demand  amounting 
to  50/.  is  in  general  advisable,  in  order  to  prevent  the  delay  oc- 
casioned by  a  writ  of  error  in  the  exchequer  chamber,(a)  it  is 
usual  for  the  pleader,  particularly  in  special  actions  of  assumfj- 
sit,  to  frame  what  is  termed  the  firteci/ie  for  such  writ,  which 
pr<£cijie  is  delivered  to  the  filazer,  who  thereupon  issues  a  ca- 
pias in  the  first  instance,  keepini^  the  /irted/ie  as  instructions 
for  the  original,  which  is  not  in  fact  issued,  unless  it  become 
necessary,  in  consequence  of  a  writ  of  error,  upon  a  judgment 
by  default.(A)  The  form  of  the  firaci/ie  in  assiimfisit,  except 
in  its  commencement  and  conclusion,  is  precisely  similar  to 
the  declaration,  setting  forth  the  time,  place,  and  other  cir- 
cumstances, which  constitute  the  cause  of  action,  with  the 
same  particularity  ;(c)  but  in  an  action  of  tres/iass,  (which 
however  is  rarely  commenced  by  original)  though  the  trespasses 

*  246  *"''^  ^^^  °"'-  ^^  length  with  the  same  number  of  counts  as  in  a 

declaration,  yet  tiiv.e,  number,   quantities,  and  value,  are   not 
particularized  in  the  prxd/ic.^d) 

In  the  commcnctment  of  ihc /irxcijtem  assumfisit^{c)  which  is 
not  to  be  intituled  of  any  court  or  term,  the  venue  should  be 


(d)    1  Sill.  424.      Trye,  fi.      Gilb.  (p)  Tlie  form   of  a  praecipe  in  as- 

K.  B.  319.      R.  M.  23  G.  III.     Tiild's     ^mnpsit  is  as  follows (to  wit) 

iPrac.  3d  edit.  94,  95.  If  A  B   make  you  secure,  &c.  tlien 

(/))  Tiild's  Prac.  3d  edit.  96,  97.  put   by    gages  and    safe   pledges,    C 

(c)    Lil.  Ent.  90.  D,    late   of mer- 

((/)  Lil.   Eut.  539.  chant,    {or  "  yeoman"   &c.   accord- 
ing to  the  fact)    and  E    F,  late    nf 


OF  TliE  PRiECII^E.  24G 

laid  in  the  c&unty  in  which  the  action  is  intended  to  be  tried,   Of  the  P-a- 

ciUe. 

and  if  the  defendant  cannot  be  found  ni  that  county,  a  testatum 
ca/nas  must  be  issued  into  the  county  where  he  may  be  ;  for 
though,  laying  the  venue  in  the  declaration  in  a  county  different 
to  that  in  the  original,  is  not  an  irregularity  of  which  the  de- 
fendant himself  can  take  advantage,  yet  his  bail  will  by  the 
practice  of  the  court  of  K.  B.  be  thereby  discharged.(/)  The 
names  of  all  the  parties  must  also  be  correctly  stated,  and  the 
statute  of  additions  requires,  "  that  in  original  writs,  the  es- 
'•  tate  or  degree,  or  mystery  of  the  defendants,  and  the  towns, 
"  hamlets,  or  places  and  counties  in  which  they  were,  or  be, 
"  or  in  which  they  l)e,  or  were  conversant,"  shall  be  insert- 
ed.C5")  Under  this  statute,  the  plaintiff  may  describe  the  de- 
fendant, either  by  his  addition  of  degree,  or  mystery  ;  and, 
therefore,  where  the  defendant  is  described  by  the  addition  of 
gentleman  or  yeoman,  *he  cannot  plead  that   he  was  a  mer-  ^  247 

chant.  Sec.  or  vice  -versa  ;(A)  and  the  plaintiff  has  his  election 
to  describe  the  defendant,  either  of  the  place  of  his  abode,  at 
the  time  of  the  issuing  of  the  writ,  or  of  any  place  which  he 
had  formerly  frequented  (0  When  the  defendant  is  described 
by  an  alias  dictus  the  adcliiion  should  be  after  the  first  name  ;{]') 
and  where  there  are  several  defendants,  the  addition  of  each 
is  usually  described  separately,  but  in  an  action  against  hus- 
band and  wife,  no  addition  of  the  latter  is  necessary.(/l-)  In 
proceedings  to  outlawry  and  in  indictments,  these  points  are  still 
material,  and  indeed  should  in  all  cases  be  attended  to  by  the 
pleader  in  framing  the  jirscijic  i  but  as  oyer  of  the  writ  can- 
not now  be  craved,  and  as  it  is  unnecessary  to  insert  the  de- 
fendant's addition  of  place  or  degree  in  any  declaration, (/}  no 
advantage  can  be  taken  in  pleading  of  a  mistake  of  the  addition 


tlxe  same  place,  merchant,  that  they  be  (^)  1  H.  Y.   e.  5. 

before  us  on (a  ^etierul  re-  (A)    Ld.  Kaym.  1541.      1  Stra.  SjC. 

turn  duv)  wheresoever  we  shall  then  2  Stra.  816. 

be   in  Enghind,    to   shew,    For  tliat  (/)    2  .Stra.  924.     Barnes,  l62.      I 

whereas,  he.  {here  srt  forth  the  cause  Lutw.  40. 

of  aciionpreciaely  as  in  a  declaration,  (J)    Leach,  C.  L.  4G9.      1  Saund. 

and  conclude  us  follows)  to   the   da-  14.  n.  1. 

Tna;,'e  of  the  s;iid  A  B,  of I.  (k)  Bac.  Ahr.  Misnomer,  B.  4. 

as  it  is  .said,  JSce.  (/)  3  B.  &  P.  395. 

(/)  3  Lev.  235.  Post,  249.    R.  E 
2  G.  U.  a. 


247  O^  THE  DECLARATION. 

Of  the  Prx-  in  the  praeci/ie  or  original,  unless  the  misaddition  be  unneces- 
sarily inserted  in  the  declaration,  in  whiqh  case,  it  would  be 
open  to  the  defendant,  to  plead  in  abatement,  (m)  The  pracifie 
must  require  the  sheriff  to  have  the  defendant  in  court,  on  a 
general  and  not  a  special  return  day,  and  in  the  King's  Bench, 
not  at  Westminster,  but  generally,  wheresoever  the  king  shall 

'"  248  then  be  in  EjiglandXn)  In  actions  of  debt  *and  covenant,  the 
prxcijie  and  capias  thereon,  as  framed  by  the  pleader,  contain 
only  a  general  complaint,  without  expressing  the  particulars  of 
the  cause  of  action.(&) 


OF  THE  DECLARATION. 

The  declaration  is  a  specification,  in  a  methodical  and  legal 
form,  of  the  circumstances  which  constitute  the  plaintiff's 
cause  of  action. (/i)  It  may  be  considered  with  reference,  1st. 
To  those  general  requisites  or  qualities,  which  govern  the 
whole  declaration  ;  and,  2dly.  To  its  form  and  particular  parts 
and  requisites. 


/.  THE   GE.YERAL  REQUISITES. 

I  General  re-       "^^^  general  requisites  or  qualities  of  a  declaration  are  ;  ist. 

quixitex.  That  it  correspond  with  the  process,(y)  and  in  bailable  actions 

with  the  ac  etiani  and  aff.davit  to  hold  to  bail.  2dly.  That  it 
contain  a  statement  of  all  the  facts  necessary  in  point  of  law  to 
sustain  the  action,  and  no  more  ;(r)  and  3dly.  That  these  cir- 
cumstances be  set  forth  with  certainty  and  truth. (s) 


(m)  I  B.  &.  P.  648.     1  S£iuiid.  318,  (/>)  Co.  Lit.  17.  a.  303.  a.    Bac. 

a.  U.S.     aSaund.  209.  a.  n.  1.  Abr.  Pleas,   B.     Com.  Dig.   P}c&Uer, 

(«)  Tidd's  Prac.  100.    Stra.  1155.  C.7.  Heath's  Maxims,  1,  2. 

(.i)    Sec  die  forms  in  Debt,  Tidd's  (9)  Com.  Dig.  Pleader,  C.  13. 

Forms,  31.  4j.    Imp.  Prac.  K.  B.  7th  (r)  Co.  Lit.  303.  a.      Plowd    «•* 

edit.  591.     Cth  edit.  537.     And  in  Co-  12'2. 

Tenant,   Tidd's  Forms,    31.45.  f^i)  Id.  ibid. 


OF  THE  DECLARATION.  248 

Regularly  the  declaration  should  correspond  with  the  pro-  /   Geiieral 

,.  .       i  •  f  ii  ^       ly (/nisi ten. 

cess;  but  as  according  to  the  *present  practice  ot  the  courts,  i,t.  .si.ouid 
over  of  the  writ  cannot  be  craved,  and  a  variance  between  the  fiTespoud 

ujfvi  v»»  7  \i,n\i  process. 

writ  and  declaration,  cannat  in  any  case  be  pleaded  in  abate-  ^  249 
ment ;(/)  and  as  there  are  several  instances  in  which  the  court 
will  not  set  aside  the  proceedings,  on  account  of  a  variance  be- 
tween the  writ  and  declaration,(K)  many  of  the  older  decisions 
are  no  longer  applicable  in  practice.  In  the  King's  Bench, 
when  the  proceedings  are  by  special  original,  we  have  seen  that 
the  venue  must  be  laid  in  the  county  into  which  the  origi- 
nal was  issued,  or  in  bailable  cases  the  bail  vvill  be  dischar- 
ged ;(t))  but  in  the  Common  Pleas  the  bail  would  not  be  dis- 
charged by  such  variance, (w)  and  where  an  outlawry  has  been 
reversed,  the  plaintiff  may  in  C.  P.  declare  in  any  county. (r_) 
We  Avill  consider  how  far,  accoi-ding  to  the  present  practice  of 
the  courts,  the  declaration  must  correspond  with  the  process, 
or  the  ac  etiam  and  affidavit  to  hold  to  bail,  with  respect  to, 
1st.  The  names  of  the  parties  to  the  action;  2dly.  The  number 
of  such  parties;  3dly.  The  character  or  "right  in  which  they  \l^,^ 
sue,  or  are  sued  ;  4thly.  The  cause  and /brm  of  action  ;  and  un- 
der each  of  these  heads,  the  consequences  of  a  deviation  from 
the  process. 

1st.  With  respect  to  the  names  cf  the  parties,  when  bailable 
or  common  process  in  the  King's  Bench  or  Common  Pleas  has 
been  issued  against  the  defendant  by  a  wrong  name,  if  heappe^xr 
in  such  name  he  will  be  estopped  from  pleading  in  abatement, 
and  *the  declaration  may  be  conformable  to  the  writ;(x')  and  ^  orp 
if  he  appear  by  his  right  name,  the  plaintiff  may  declare  against 
him  by  such  name,  stating,  that  he  was  arrested  or  served  with 
process  by  the  other,  in  which  case  the  defendant  cannot  plead 
the  misnomer  in  the  writ  in  abatement. (w)     It  has  been  deci* 


(0  1  Sauncl.   318.   a,     3  B.   &   P.  {v)   Willesy  461.     Barnes,   94.     1 

395.    6  T.  R.  364.  Salk.  8.     3  T.  R.  611.     2  Wils.   393. 

(n)CT.  R.  364.  Bac.  Abr.  tit.    Pleas,  I.   11.     Tidd'a 

{v)  Ante,  '216.  Prac.  582.  n,  i.  ace.     Ld.  Raym.  i249, 

(w)  Imp.  Prac.  C.  P.  150,  160.     R.  cont. 

H.  22  Geo.  III.  C.  P.  (to)  S  T.  R    GU      1  B,  J*  P.  64* 

(.r)  3  L6y.  245      Imp.  C  P.  612.  2  Wils   '593, 

Vol.  I                                  r  23  1 


2.50  OF  THE  DECLARATION, 

/.  General  ded  in  the  King's  Bench,  that  on  process  not  bailable,  if  the  de- 
fendant do  not  appear,  the  plaintift'  cannoU  rectify  the  mistake 
by  appearing  for  him  in  his  right  name,  according  to  the 
statute  ;(ar)  though  if  the  plaintiff  were  to  appear  for  the  de- 
fendant, in  the  name  by  which  he  is  sued,  this  would  warrant 
him  in  proceeding  to  judgment  and  execution  ;(i/)  but  it  has 
been  decided  in  the  Common  Pleas,  that  even  in  bailable  pro- 
cess, an  arrest  of  a  person  by  the  naine  of  Westoji^  and  declara- 
tion de  bene  e.ise  against  him,  as  JVaaott  sued  by  the  name  of 
Weston,  was  regular  ;(r)  and  it  has  been  since  determined  in  the 
King's  Bench,  that  if  a  defendant  be  served  with  process  by  a 
wrong  christian  name,  and  afterwards  the  plaintiff"  enter  an  ap- 
pearance for  him,  and  serve  him  with  notice  of  declaration  by 
his  right  name,  and  proceed  to  judgment  and  execution,  the 
court  will  not  set  aside  the  proceeding  for  irregularity,  merely 
on  the  ground  that  the  defendant  never  appeared,  because  he 
ought  to  have  pleaded  such  misnomer  in  abatement  ;(a)  and 
it  has  been  decided,  that  where  process  has  been  issued  against 

^251  ^  defendant,  *by  a  wrong  name,  such  misnomer  may  be  cured 
by  amending  the  writ,  if  there  be  any  thing  to  amend  by, 
and  then  declaring  against  the  defendant  by  his  right  name  ; 
as  where  the  defendant  is  properly  named  in  the  affidavit  to 
hold  to  bcdl,  but  is  mistaken  hi  the  process. (6)  If  there  be  rea- 
son to  doubt  the  defendant's  name,  it  may  be  advisable  either 
to  wait  till  the  defendant  has  appeared,  and  to  declare  in  chiet^ 
or  to  declare  de  bene  esse,  with  an  alias,  and  it  has  been  held, 
that  a  declaration,  against  a  defendant,  by  the  name  of  *'  Jonathan 
<'  othcrv^-ise  yo/m  So'ayis"  \%  sufficient. (c)  If  the  plaintiff",  not  be- 
ing aware  of  the  real  name  of  the  defendant,  declare  against  him 
by  his  wrong  name,  and  he  plead  the  misnomer  in  abatement,  it 
is  not  necessary  to  enter  a  cassetur,  for  the  court  '4\  ill  give  the  plain- 
tiff" leave  to  amend,  even  in  proceedings  against  aprisoner,(rf)  un- 
less previous  to  the   application,   the  debt  has  been  tendered. 


(.r)  3  T.  R.  Gil.  ill  wliat  name  tlic  \na.h\iiff  e?itered tht 

V  (v/)  2Si;-a.  121S.     C  T.   R.  234  to  appearance. 

2j6.  (b)  2  B.  k  P.  109. 

(-')  1  15.  k  r.  105.  (f)  3  East,  111. 

{a)  3  Eabl,  107.     But  it  is  observ-  (</)  7  T.  K.  083. 
od  in  the  notes,  that  it  did  not  appear 


OF  THE  DECLARATION.  2^1 

"Where  there  has  been  a  misnomer  in  the  writ,  care  must  be  J'-  f^eneral 

requisites. 
taken  on  the  part  of  the  defcndunt,  not  to  waive  the  objection  ;(c) 

and  it  is  said,  that  he  may  move  before  appearance,  to  set  aside 
the  proceedings  for  irregularity,(/)  or  where  he  has  been  ar- 
rested on  bailable  process,  he  may  support  an  action  of  tres- 
pass for  the  false  imprisonment. (i') 

Where  the  name  of  the  filaintiff  has  been  mistaken  in  the 
process,  it  is  advisable,  as  in  the  case  of  a  defendant,  to  state, 
that  "  .4.  B,  (the  real  name,)  at  whose  suit,  by  the  name  of  K 
«  *i?,  C  D  was  served  with  process,"  or  "  arrested  in  this  suit,  *   252 

"  complains  of  the  said  C  D  being,"  Scc.(/2)  for  if  the  plain- 
tiff's misnomer  be  continued  in  the  declaration,  the  defendant 
may  plead  it  in  abatement,  though  he  cannot  in  bar,  even  in 
the  case  of  the  name  of  a  corporation. (/) 

2dly.  With  respect  to  the  declaration  corrcbponding  with  the 
process  in  the  yjumber  of  the  parlies,  it  has  been  held  that  if  a 
w^rit  be  sued  out  in  the  name  of  one  filuintijf^  the  declaration  in 
chief  must  not  vary,  and  if  it  be  delivered  in  the  name  of  two 
plainlifls,  the  proceeding  will  be  set  aside  for  irregularity, (_;') 
But  in  the  King's  Bench,  where  the  defendant  has  appeal  ed  to 
process  at  the  suit  of  two,  one  of  them  may  declare  alone  by 
the  bye,  for  he  will  be  considered  as  a  stranger  \[k)  and  though 
the  plaintiff  in  the  original  action,  must  declare  in  chief,  before 
he  can  declare  by  the  l)ye,(/)  any  other  j)erson  may  declare  by 
the  bye,  before  the  delivery  of  u  declaration  in  chief  ;(7;!)  and  in 
an  action  at  the  suit  of  the  husband  alone,  a  declaration  may  be 
delivered  by  the  bye  at  the  suit  of  himself  and  feme,  and  vice 
versa,  though  it  is  otherwise  in  the  Common  Pleas. (7?) 

Process  by  bill  or  latitat,  not  bailable  in  the  King's  Bench  or 
common  process  in  the  Common  Picas,  may  be  against  four 
defendants,  and  the  plaintiff  may  declare  thereon  separately 
against  each  ;(c)  but  on  bailable    process   against  several,  the 


(e)  See  tlic  mo»le   of  appearance,         {k)  Bun-.  2180. 
an.l  of  givin-   lliu    bail-bond,    Tidd's         (/)  O  T.  I{.  l.iS.     7  T.  R.  80. 
I'rac.  3(1  edit.  5Si.  n.i.  (m)  Col.  I'biliipb'  case.    I   Crornp. 

(/)  I  n.  &  P   f,i7.  100. 

(^)  8  East,  3-2S.     Tidd's  Prac.  582.  (»)    Bnrncs,   337.       1    Sul.    Trac 

n    i.  c.  f).  s.  1.  J5.  3. 

(/i)  t  n.  &  P.  Gir.  (&)  -i  East,  .S89.     1  B.  k  P.  19.  4?- 

(i)  1  B.  V  P.  40.     3  Anstr.  '}Zo.  4  T.  R.  095.     Tidd's  Prac.  80 

CO  1  B.  it  P.  3S3. 


253*  OF  THE  DECLARATION. 

/.  General      *declaration  must  be  against  all  jointly,  or  the  declaration  will  be 
set  aside  for  irrcgularity.(/z) 

3dly.  XJ  pon  common  process,  not  bailable,  and  which  docs  not 
specify  the  characttr  or  right  in  which  the  plaintiff  sues,  he 
may  declare  qui  tain,  or  as  executor,  or  administrator,  or  as- 
signee, or  any  other  special  character,  for  this  does  not  tend 
to  enlarge,  but  to  narrow  the  demand  which  the  defendant 
was  called  upon  to  answer  ;{q)  and  it  has  been  decided,  that 
though  the  plaintiff  may  style  himself  executor,  (not  stating 
himself  to  sue  as  executor,)  or  give  himself  any  other  superfluous 
description  in  the  process,  and  declare  otherwise,  this  will  not  be 
irregular,  because  the  demand  is  still  the  same.Cr)  But  where 
the  process  is  to  answer  the  plaintiff,  in  a  special  character  or 
right,  he  cannot  declare  generally,  and  if  he  do,  the  variance 
will  be  fatal,  and  the  court  will  set  aside  the  proceedings,(«)  as 
if  the  process  be  qiu  ta7n,(t)  or  as  executor,(M)  or  as  assignee 
of  a  bankruptjCf )  the  declaration  can  only  be  in  the  same  cha- 
racter ;  and  in  the  latter  cases,  where  the  action  is  bailable,  the 
court  will  discharge  the  defendant  out  of  custody,  on  filing  com- 

^   Q-^-f         iif^oi^  *bail  ;(w)  and  where  the  process  is  bailable,  to  answer  the 
^  plaintiff  in  his  own   right,  and  he   declare   as  executor,   the 

court  will  order  a  common  appearance  to  be  entered,  leaving 
the  plaintiff,  however,  at  liberty  to  proceed  upon  his  declara- 
tion.(>r)  It  seems,  that  if  the  process  be  general  in  the  body  of 
it,  a  variation  in  the  declaration  from  the  ac  etiam  part,  or  from 
the  affidavit  to  hold  to  bail,  is  only  a  ground  for  discharging  the 
defendant  on  common  bail,  and  not  for  setting  aside  the  proceed- 
ings for  irregularity. (y) 


{p)  Id.  ibid.  5  T.  R.  722.     Tidd's  (.s)  Ante,  note  (y). 

Piac.  164.     How  to  act  when  one  of  {t)  Burr.  2417.     2  Stra.  1232.  n.  1. 

the  defendants  cannot  be  arrested  or  {v)  8  T.  II.  416.    1  B.  &  P.  383.    3 

served  with  process.     See  Sel.  Piac.  Wils.  61. 

vol.  1.  c.  6.  s.  1.  E.    Imp.  Prac.  K.  B.  (v)  1  Tidd's  Prac.  3d  edit.  403.  n- 

Cth  edit.   545.     7  edit.  599.     1    Stra.  g. 

47.^.  (-tO  8T.  R.416. 

(</)  Stra.  1232.     2  Bl.  Rep.  722.     3  (.r)  3  Wils.  61. 

Wils.  141.    Burr.  2417.     1  B.  &c  P.  {ij)  6  T.  R.  363.     3  Wils.  141-  lOI- 

383.  n.  b.  8  T.  R.  416. 

()■)  2  Bl.  Rep.  722.    1  B.  &  P.  383 
n.  b. 


OF  THE  DECLARATION.  254 

4t:hlv.  Upon  common  process,  by  bill  in  the  King's  Bench,  or  /•  General 
upon  a  cajdas  or  original  yware  clausum  /regit  m  the  Common 
Pleas,  the  plaintiff'  may  declare  in  any  cause  of  action  whatever, 
though  the  writ  in  each  case  is  in  trespass.(z)  But  in  bailable 
uctions,  the  declaration  must  correspond  with  the  cause,  and  the 
form  of  action  in  the  affidavit,  and  the  ac  etiain  part  of  the  lati- 
tat,  or  other  process,  for  otherwise  the  defendant  will  be  dis- 
charged out  of  custody,  on  filing  common  bail  ;(a)  but  this 
will  be  the  only  consequence,  for  the  court  will  not  in  such  case 
set  aside  the  proceedings  for  irregularity .(6)  And  a  variance 
in  the  amount  of  the  debt,  between  the  ac  etiam  part  of  the  lati- 
:at  and  the  declaration,  is  not  even  a  ground  for  discharging  the 
defendant  on  common  bail  ;(c)  and  where  the  sum  *sworn  to  is  ^-  255 
under  40/.  a  variance  between  the  form  of  action  in  the  ac  etiam 
and  the  declaration,  is  not  material. (c)  When  the  proceeding 
has  been  by  special  original.,  the  plaintiff"  should  declare  in 
chief,  for  the  same  cause  of  action  expressed  in  the  writ,  and 
in  bailable  cases  if  there  be  a  variance  between  it  and  the  de- 
claration, the  defendant  will  be  discharged  on  entering  a  com- 
mon appearance  ;(c/)  but  the  proceedings  will  not  be  set  aside, 
merely  on  account  of  a  variance  in  the  cause  of  action,  and, 
therefore,  the  only  consequence  of  the  mistake  is,  that  the 
plaintiff"  loses  the  security  of  the  bail.(f) 

The  declaration  must  allege  all  the  circumstances  necessary  2dl_v.  Thcu.- 

for  the  support  of  the  action,  and  contain  a  full,  regular,  and  ^,!,te   all  the 

methodical  statement  of  the  injury  which  the  plaintiff"  has  sus-  ^'^'^^t  '^^^^^^^^ 

J      ■'  »  to  the  support 

tained,  with  the  time  and  place,  and  other  circumstances,  with  of  the  action 
such  precision,  certainty,  and  clearness,  that  the  defendant 
knowing  what  he  is  called  upon  to  answer,  may  be  able  to 
plead  a  direct  and  unequivocal  plea,  and  that  the  jury  may  be 
enabled  to  give  a  complete  verdict  upon  the  issue,  and  that 
the  court,  consistently  with  the  rules  of  law,  may  give  a  cer- 


(:)  Cowp.  455.     R.  E.   15  Geo.  II.  (c)  5  T.  R.  402.    Sed    vide  2  East, 

re;^-  1.  205. 

(<0  "  T.  R.  80.    8  T.  R.  2".  Cowp.  (r)  I  H.  Bl.  310.       2  Saund.  52.  a. 

455.     1  H.  Rl.  310.  {({)  5  T.  R.  402.    R.  H.  8  Car.  I. 

{b)  6  T.  R.  363.  2  Wils.  303.  Ante,  {e)  6  T.  R.  3C3.    2  Wils.  39.?. 
■?09. 


255*  OF  TftE   DECLARATION. 

/.  General      tain  and  distinct  judg-ment  upon  the  premises. (y)     The  gene- 
fequisites.        ^.^j  j.yjgg  ^^  ^^  \s\\^t  facts  must  bc  stated,  have  been  considered 
in  the  preceding  chapter,(5''  as  well  as   the   inconveniences 
*  256         which  may  arise  from  the  *statement  of  superfluous  or  un- 
necessary mattcr.(//)      The  requisites   of  the  declaration  in 
each  particular  case,  so  much  depend  upon  circumstances,  that 
any  general  observations  in  this  place  upon  the  structure  of  a 
declaration  would  be  but  of  little  utility. 
3(lly-  Of  the       We  have  already  considered  the  different  degrees  of  cer- 
ciuh-e'din a <\c^  tainty  required  in  pleading,  and  we  have  seen,  that  the  cer- 
daration.(/)      tainty  necessary  in  a  declaralion,  is  to  a  certain  intent  in  gene- 
ral//) which  should  pervade  the  Avhole  declaration,  and  is  par- 
ticularly required  in  setting  forth  the  parlies,  time,  place,  and 
other  circumstances  necessary  to  maintain  the  action. (it) 

1st.  It  must  be  stated  with  certainty  who  are  the /ier?:V*  to 
the  suit ;(/)  and,  therefore,  a  declaration  by  or  against  "  C  23 
"and  company,"  not  being  a  corporation,  is  in  ufficient  •,(m)  but 
where  there  are  several  plaintiffs  or  defendants,  whose  names 
have  been  once  described,  it  is  sufficient  afterwards,  to  adopt 
the  words,  "  plaintiffs,"  or  "  defendants,"  without  again  enu- 
merating all  the  names  ',{71)  but  this  is  not  usual  in  practice, 
unless  the  parties  be  very  numerous.  We  have  seen,  when 
the  declaration  may  vary  from  the  jirocess,  in  the  name  of  the 
defendant,  or  may  describe  him  with  the  alias  dictns.(o)  If 
^  257  ^^^^  plaintiff's  name,  even  in  tlie  *case  of  a  corporation,  be 
mistaken,  the  objection  can  only  be  taken  by  plea  in  abate- 
nient.(/i)  In  declarations  upon  contracts,  it  should  be  express- 
ly stated,  by  and  with  wliom  the  contract  was  made  ;(y)  and 
where  there  are  two  or  more  persons  of  the  same  name,  they 
should  be  distinguished  from  each  other  by  the  insertion  of 
bome  appropriate  allegation,  as  "  the  now  plaintiff,"  or  "  the 


(/")  Cowp.  CS2.     6  East,  42'2,  423.  (/)  Com.  Dig;.  Pleader,  C.  18. 

Sr.n.  62,5.  (/»)  ST.  R.  508. 

(..r)  Ante,  21c  to  229.  (11)   I  New  Rep.  2S9. 

(A)  Ante,  2.51  to  2.'?4.  {0)  Ante,  249  to  252. 

(0  Ante,  236  to  241.  (/>)  1  B.  &  P.  40.       3  An.'^tr.  9.5o. 

0)    Ante,  237.       Plowd.    84.   Co.  (9)   Lil.  Itaym.   899.      Com.   Dig, 

Lit.  30.3.  a.     1  New  Rep.  173.  Action,  Case  Assumpsit,  H.  3.  Plejwt- 

(A-)  Com.  Dig.  Pleader,  C.  18  to  C.  er,  C.  IS. 
•■r.     Tidd'b  Pruc.  3'J  edit.  405. 


OF  THE  DECLARATION.  257 

*'  defendant   in   this    suit,"    ov    "  the    said    E   F,  deceased,"  /.   fienerdl 

.     .        .       ,  .  ,        Ml    requisites. 

&:c.(r)  in  general,  however,  the  omission  m  this  respect,  will 

be  aided  by  intendment,  particularly  upon  a  general  demurrer, 
or  after  verdict.Cs)  But  where  the  plaintiff's  name  has  by  mis- 
take been  inserted,  instead  of  the  defendant's,  or  vice  versa, 
the  declaration  will  be  bad  upon  special  demurrer  ;(0  though 
it  is  aided  by  verdict,  or  upon  general  demurrer,  by  the  sta- 
tutes of  jeofails  •,{u)  but  it  has  been  decided  that  these  statutes 
do  not  extend  to  the  names  of  third  personsX-v)  When  the 
debt  arose  on  record  or  specialty,  it  was  formerly  usual  to  state, 
as  well  in  the  writ  as  declaration,  the  defendant's  description  in 
the  recoi-d  or  specialty,  under  an  alias  dictiis,  but  this  is  no 
longer  the  practice. (^w) 

2dly.  Tlic  declaration  in  personal  actions,  must  in  general, 
state  a  r/wd-,  when  every  material  or  *traversable  fact  happened,  ^  258 

and  when  a  venueis  necessary,  time  must  also  be  mentioned. (x) 
The  precise  time,  however,  is  not  material,  even  in  criminal 
cases,(T/)  unless  it  constitute  a  material  part  of  the  contract,  Sec. 
declared  upon,  or  where  the  date,  &c.  of  a  v/ritten  contractor 
record  is  averred, (r)  or  in  ejectment,  in  which  the  demise 
must  be  stated  to  have  been  made  after  the  title  of  the  lessoi 
of  the  plaintiff  and  his  right  of  entry  accrued. (fl)  Thus  in  as- 
suTTi/ifiit  upon  a  parol  contract,  the  day  upon  which  it  is  made 
being  alleged  only  for  form,  the  plaintiff  is  at  liberty  to  prove 
a  contract  express  or  implied,  at  any  other  time  ;(6)  though  in  • 

ctating  the  date  of  a  promissory  note  or  deed,  or  in  describing 
a  usurious  or  other  contract  relating  to  time,  it  must  be  truly 
stated. (c)  A  deed,  however,  may  be  stated  in  pleading,  to 
have  been  made  on  a  day  different  from  that  on  which  it  bears 
date,  though  in    such  case,  the  words  "  bearing  date,"   Stc 


{>•)    2  Wils.   386.      Cro.  Eliz.  2G7.  C-24,  C,25.     Com.  Dig.  Plcadci-,  C.  IC 

Coin.  Dig.  Plcailer,  C.  1 S.  Plowd.  '24. 

(v)    Id.  ibid.     1  New  Kcp.  172.  (y)    Id.   ibid.      1  .Siiund.   '24.  n.  1 

(0  1  B.  8c  P.  .69.     Wilies,  S.  Co.  Lit.  '2S3.  a.     2  Sauiid.  5.  n.  3.  -295 

(?0  10  k  ir  Car.  II.  c.  8.     4  Ann.  n.    2.       lluwk.    P.    C.   B.   2.     c.  2: 

c.  If).      Com.  Dig.  Action,  Case  Ab-  s.  81. 

sumpsit,  H.  3.     Willcs,  5.  (:)4T.  R.  590.     10  Mod.  313. 

(r)  Willcs,  8,  9.  («)  2  East,  257. 

(w)    1  Saund.  14.  n.  1.  (6)  2  Stra.  806.     10  Mod.  31;. 

<.'•)    Per  Bulk-r,  J.    ;-.  T.  R.  C20  (r)  Id.  ibid.    3  T.  K.  531 


258  OF  THE   DECLARATION. 

/   General      shoiild  be  omlitcd.(r/)     So  in  trespass  the  time  is  not  mate- 

fqui'i  t.\.  nal,(f)  and  where  several  trespasses  are  stated  to  have  been 
committed,  on  divers  days  and  times,  between  a  particular  day, 
and  the  commencement  of  tiic  action,  the  plaintifl'  is  at  liberty 

"*  259  ^°  prove  a  single  act  of  trespass,  anterior  *to  the  first  day, 
though  he  cannot  give  in  evidence  repeated  acts  of  trespass, 
unless  committed  during  the  time  stated  in  the  declaration .(/") 
When  in  one  continued  sentence,  or  in  several  sentences  con- 
nected by  the  conjunction  "  and,"  several  facts  are  stated,  the 
time  though  only  once  alleged  will  apply  to  each  fact ;  as  iu 
trespass  that  the  defendant  on.  Sec.  at,  8ic.  made  an  assault  on 
the  plaintiff  and  took  and  carried  away  a  bag. (5')  And  it  is  said, 
that  in  averring  the  performance  of  a  contract,  it  is  not  neces- 
sary to  stale  any  particular  day,  unless  time  be  matcrial,(A)  and 
to  a  negative  matter,  no  time  need  be  alleged. (0  In  framing 
tlie  declaration,  care  must  be  taken,  that  no  part  of  the  cause 
of  action,  or  damages  resulting  from  the  injury,  appear  to 
have  accrued  after  the  time  to  which  the  declaration  by  its 
title  refers,  for  otherwise  it  will  be  subject  to  a  demurrer  ;(y) 
and  where  it  is  positively  and  expressly  averred  in  the  declara- 
*ion,  that  tlie  plaintiff  has  sustained  damage  from  a  cause,  sub- 
sequent to  the  commencement  of  the  action,  or  previous  to 
the  plaintiff 's  having  any  right  of  action,  and  the  jury  give  en- 
tire damages,  judgment  will  be  arrested ;  but  where  the  cause 
of  action  is  properly  laid,  and  the  other  matter,  either  comes 
under   a   scilicet^    or  is  void,  insensible   or   impossible,    and 

*"  260  therefore  it  cannot  be  intended,  that  the  jury  ever  had  it  under 

their  consideration,  the  pluintiff  will  be  entitled  to  judgment. (X-) 
After  verdict,  judgment  will  not  be   stayed  or  reversed,  for  a 
mistake  of  the    day,  month,  or  year,  in  any  declaration,  &c 
where  the  right  time  in  the  same,  or  any  proceeding  writ,  &c 
is  once  alleged,(/3  and  this  provision  is  now  extended  to  judg- 


(</)  4  East,  4r7.  {i)    5  T.  R.  ClG.     Plowd.  24.  a. 

(c^  Co.  Lit.  2S.3.a.  Com.  Dig.  Pleader,  C  19. 

(/)  Post,  vol.  d.  3C,7,  56S.  n.  s.  •    (  /)  2  Saund.  '201.  n.  1.  e. 

(5)  Cro.Jac.  44,3.26-2.  An(ir.'251.         {h)    2  Saund.    171.   c.     Com.  Dig 

Com.   Di".    Pleader,    C.  19.       I  Ld.     Pleader,  C.  19.     And  ante,  233, 234 

Kaym.  576.  (/)    16  k  17  Car.    II,    c.  8.      Cora 

(/i)  Cro.  Eli?  fiSO  Dig.  Pleader,  C.  19- 


-OF  THE  DECLARATION. 


260 


taents  by  confession,  nil  dici(,  Sec.  in  courts  of  record,(m)  and  /.  Geneva/ 
in  penal  actions.(«)  -equh-ite.. 

3dly.  It  is  also  essential  to  the  declaration,  that  a  place  be  al- 
leged, where  every  fact  material  and  traversable  occurred. (o; 
I  shall  postpone  the  consideration  of  this  requisite,  till  I  state 
the  doctrine  of  venues. 

4thly.  It  is  still  more  material,  that  certainty  and  accuracy 
be  observed  in  the  more  substantial  parts  of  the  declaration, 
which  state  the  cause  of  action  itself.  Thus  in  assumjisit,  the 
consideration  of  the  contract,  and  the  contract  itself  must  be  .^ 

luUy  stated,  and,  therefore,  in  the  instance  before  mentioned, 
a^ declaration  stating  that  in  consideration  that  the  plaintiff"  had 
sold  to  the  defendant  a  certain  horse  at  and  for  "  a  certain  quan- 
"  tity  of  oil,"  not  specifying  the  quantity,  is  insufficient. (//)  So 
a  declaration  in  debt  on  "  a  certain  bond,"  without  stating  the 
particulars,  is  not  sufficiently  certain  •,{q)  and  a  declaration  hi 
trespass  for  taking  fish.  Sec.  or  divers  goods  and  chattels,  without 
♦specifying  the  number  or  quality,  is  too  general. (r)  So  a  dc-  *  261 
claration  in  ejectment  for  a  "  tenement,"  not  shewing  of  whaf 
description. (5)  On  the  other  hand,  we  have  seen  that  the  de- 
claration should  contain  no  unnecessary  statement,  nor  prolixity 
in  the  statement  of  those  facts  which  must  be  alleged.(;)  The 
application  of  these  several  rules  will  be  better  considered 
when  we  examine  the  particular  parts  of  the  declaration,  it 
may  here  suffice  to  observe,  that  the  want  of  sufficient  certain- 
ty, is  generally  aided  by  verdict  at  common  Iaw,(u)  or  even 
by  the  defendant's  pleading  to  the  declaration, (i))  or  by  demur- 
"ing  to  the  whole,  where  only  a  part  of  the  count  is  bad. (7;/) 

ij.  rrs  I'.inrs  .lvi)  particular  requisites. 

The  parts  of  a  declaration  are,  1st.  The  title  of  the  court  and 
term.     2dly.  The  venue.     3dly.  The  commencement.     4thly. 


(m)  4  Ann.   c.  16.  (?)  Ante,  231  to  2,)3. 

(7i)  4  Geo.  11.  c.  26.     Willcs,  COO.  («)  2  B.  k  P.  205.     I   New  Rep 

(0)  5  T.  11.  620.  172.    2  Saund.  74.  b.    1  Saund.  228.  :. 

{/))  Ante,   240.  (r)  2  Saund.  74.  b. 

Iq)  Id.  ibid.  (w)  2  Saund.  379,  .'5S(>     Com.  Dkr: 

(r)  Com.  Dig.  Pleader,  C.  21.  Pleacli.T,  C.  3? 


(s)  1  East,  441.     8  East,  357. 
\'0L.    1.  r   24   "! 


IL 


261  OF  THE  DECLARATION. 

II.  lis  parts.  The  Statement  of  the  cause  of  action.     Sthly.  Several  counts. 

6ihly.  The  conclusion.     And  7thly.  The  profert  and  pledges. 

1st.  Tlie  title       In  the  King's  bench,  when  the  proceedings  are  by  bill,  the 
of   tKe   court     ,      ,         .       .  •,,•,,  ,-    ,  ,  ,  .    n 

and  iLi-m.         declaration  is  entitled  with  the  name  ol  the  pruthonotary,  or  chief 

clerk,  now  "  Markham  and  Le  Blanc"  for  enrolUug  pleas  in  civil 
*■  2G2         causes,  depending  between  party  and  *party,  on  the  plea  side 
of  the  court,  and  paniculaily  by  bill.(x)     When  the  proceed- 
First  title   of  ings  are  by  original,  the  declaration  is  usually  entitled  "  In  the 
^'"^'  "  King's  Bench  ;"  and  in  the  Common  Pleas  and  Exchequer, 

the  name  of  the  court  is  superscribed,  as  in  a  declaration  by 
original,  in  the  King's  Bench. 
Of  what  terra.  The  title  of  the  ^er/;?,  with  reference  to  the  ancient  proceed- 
ings ore  tctius,  is  to  be  considered  as  a  statement  or  memoran- 
dum of  the  time  when  the  plaintiff  comes  into  court,  and  alleges 
his  cause  of  complaint ;(;/)  and  as  this  could  only  be  in  term  time, 
when  the  defendant  was  in  court,  conseiiuentlya  declaration  must 
in  general  be  entitled  in  term,  though  by  the  present  practice  of 
the  courts,  a  bill  may  be  filed  in  vacation,  against  a  member  of 
parliament,  an  attorney,  or  a  prisoner,  with  a  special  memoran- 
dum of  the  preceding  terni.(z)  The  declaration  by  bill,  should 
regularly  be  entitled  of,  or  on  a  day  after  bail  has  been  filed,  or 
on  appearance  entered,  because  the  bill  of  which  it  is  a  copy, 
cannot  be  filed  until  the  bail  is  put  in,  which  alone,  in  the  King's 
Bench,  gives  the  court  jurisdiction,  and  when  by  reference  to 
the  practice  of  declaring  ore  tcnus,  the  defendant  was  in  court, 
to  hear  the  cause  of  complaint  ;(a)  unless  in  the  case  of  a  de- 
claration de  bene  esse.  Therefore,  if  there  be  two  defend- 
ants, and  one  of  them  cannot  be  served  or  arrested  on  the  first 
^   263  process,  *and  he  be  brought  into  court  upon  another  writ,  re- 

turnable in  a  subsequent  term,  the  declaration  should  be  enti- 
tled of  the  last  term  ;(A)  and  where  one  of  several  defendants 
has  been  outlawed,  the  declaration  must  be  entitled  after  such 
outlawry  is  complete  ;(c)  luid  where  a  sole  defendant  cannot  be 
served  or  arrested  on  process  returnable  in  one  term,  and  an 


(a-^Tidd's  Prac.  3d  edit.  30.  Com.  Dig-.  Pleader,  C.  8.    Rep.  T.  H. 

0/)  1  T.  R.  116.  141.     Tidd's  Prac.   3d  edit.  291.  36/" 

(=)  5  T.    R.  325.     8  T.  R.  643.     2  1  B.  &  P.  307. 

Saiiud.  I.  n.  I.  (/>)  1  Wi!s.  78.     242, 

(«)  2Lcv.  13.     176.     I  Vent.  135.  (r)  1  Eust,  133.    1  AVils.  78. 


M 


OF  THE  DECLARATION.  263 

alias  returnable  in  the  next  be  issued,  the  declaration  may  be  ^{-  Its  parts. 
entitled  of  the  lust  tcrm.(c/)  In  these  cases,  however,  the  plain-  x-tim. 
tiff  cannot  upon  a  declaration  in  chief,  give  in  evidence  a  cause 
of  action  arising  after  the  first  term  ;(c)  but  a  declaration  by  the 
bye,  liot  being  founded  on  the  original  process,  may  be  entitled 
of  the  second  term,  and  the  plaintiff  therein  may  give  in  evi- 
dence a  cause  of  action,  arising  after  the  first. (y") 

It  has  been  the  practice,  when  the  cause  of  action  would  ad-  Special    title 
.  ,      ,        ,      ,         .  ,      ,        ,      ,  .,,  •    •      ,  when  proper. 

nut,  to  entitle  the  declaration  'whether  by  bill  or  original)  gene- 
rally of  the  term  in  which  the  Avrit  is  returnable ;  but  when 
the  proceeding  is  by  bill  or  latitat  in  K.  B.  it  is  advisable  to  en- 
title the  declaration  specially,  of  the  day  on  which  it  is  filed  or 
delivered,  so  as  to  admit  of  proof  of  a  new  cause  of  action,  or  of 
a  promise  or  acknowledgment,  after  the  issuing  of  the  process, 
and  after  the  first  day  of  term,  which  would  entitle  the  plaintiff 
to  recover,  even  in  bailable  process,  and  which  could  not  be  pro- 
ved, were  it  not  for  such  special  memorandum  ;(^)  *and  such  *  264 
special  title  may  also  be  advisable  in  declaring  in  the  Common 
Pleas.(/;)  Where  the  cause  or  right  of  action,  whether  by  bill 
or  original,  accrues  after  the  first  day  in  full  term,  such  special 
memorandum  is  indispensably  necessary,  for  a  general  title  re- 
lates to  the  first  day  in  full  term,0')  unless  there  be  some  pro- 
ceedhig  of  record,  to  refer  it  to  a  subsequent  day,  as  in  a  de- 
claration in  scire  facias^  which  need  not  be  entitled  specialJy.Cy) 
Thus,  if  the  bill  of  exchange  become  due,  or  the  bail-bond  be 
assigned,  or  the  letters  of  administration  be  granted  to  the 
plaintiff,  after  the  first  day  of  the  term,  a  special  title  is  neces- 
sary ',{k)  and  where  a  latitat  was  sued  out  against  bail,  return- 
able on  the  20th  of  JVbveynber^  and  the  declaration  was  entitled 
against  them  on  the  16th,  and  in  the  pleadings  subsequent  to  the 
declaration,  the  proceedings  appeared  on  the  record,  the  decla- 
ration was  held  bad  on  demurrer,  on  tiie  ground  that  it  should 


(</)  3  T.  R.  627.  (0  T.  R.  IIG.     1    Sauml.    40.  n.  i. 

(e)3T.  R.624.  Cartli.  113.     2  Bl.  Rep.  735. 

(/)  3  T.  U.  627.  (7)  2  Bl.  Rep.  73.^.  3  Wils.  ISZ^In 

(?)  4  East,  75.     7  T.  R.  4.     Post,    2  Lev.  170.  the  court  searched  for  the 

vol.  2.  1.  n.  a.  bill.     Spc  also  id.  213.     1  Vent.2  64, 

(A)  1  B.  &  P.  3-5^rr  2  Eaot,   ■~<35      IT.  R.  117,  118. 

Popt,  vol.  2.  3.  n.  k.  f^)  Supra,  n  i      I  East,  499 


l^k. 


264  OF  THE  DECLARATION. 

11.  Its  parts,  have  been  entitled  after  the  return  day  of  the  latitat. {I)     A  spe 

First  titie  of  cial  memorandum  is  also  frequently  advisable,  in  order  to  avoid 
the  necessity  of  producmg  the  writ  ;{m)  and  when  there  has 
been  a  continued  trespass  or  damat^e,  the  declaration  should  b& 
entitled  as  late  as  possible. («)     Where,  however,  the  cause  of 

^  265  action  was  stated  to  have  accrued  on  the  first  *day  of  the  term, 
it  was  held  on  special  demurrer,  that  the  declaration  might  be  en- 
titled of  the  term  generally,  because  formerly,  when  the  plead- 
ings were  ore  tenus,  the  plaintiff  could  not  declare,  till  the  ac- 
tual sitting  of  the  court,  and  the  cause  of  action  might  have  ac 
crucd  before  such  sitting  (ci) 

Consequences  When  on  the  face  of  the  declaration  entitled  generally  of  the 
term,  it  appears  that  the  cause  of  action  accrued  after  the 
first  day  thereof,  the  defendant  may  demur,(/0  or  may  move 
in  arrest  of  judgment,  or  bring  a  writ  of  error  ;((7)  the  court, 
however,  will  even  after  cri'or  brought,  give  leave  to  amend  on 
payment  of  costs  ;(?)  and  indeed  it  has  been  holden,  that  if  after 
verdict,  it  be  made  appear  upon  motion  in  arrest  of  judgment, 
that  the  bill  was  filed  and  declaration  delivered  after  the  cause  of 
action  accrued,  the  plaintiff  is  entitled  to  judgment  without  any 
amendment,  for  though  the  declaration  being  general,  relates 
prima  facie.,  to  the  first  day  of  the  term,  yet  the  bill  being- 
filed  on  a  subsequent  day  all  the  subsequent  proceedings  relate 
thereto,  by  the  course  of  tlie  court  of  which,  if  error  be  brought, 
the  court  must  ex  officio  take  notice  :(s)  so  upon  a  motion  in 
arrest  of  judgment,  the  general  title  was  aided,  by  referring  to 
the  time  of  filing  bail ;(/)  and  in  another  case  it  was  held,  that 

■*■  :266  after  verdict,  the  only  course  was  to  *allegc  diminutioTi,(2/) 

Therefore,  though  it  is  more  usual  to  file  a  new  bill  and  amend 
by  it,(i')  or  to  submit  to  the  reversal  of  the  judgment  of  the 
coui't,  in  which  case  no  costs  are  payable,  yet  it  may  be  ques- 
tionable, if  in  any  case  this  objection  can  be  taken  with  effect  in 
arrest  of  judgment,  or  even  by  error,  unless  it  appear  upon  an 

(/)  8  T.  R.  629.  n.  b.                 _  K.  118.  1  Vent.  2G4.  1  Sid.  373.    432. 

(w)  2Saun(l.  1.  c.  <].     2  East,' 574.  Bull.   N.   P.  137.     Tidd's  Prac.    3d 

(»)  2Saund.  171.  c.  edit.  295.     Ante,  223,  224,  225. 

(o)lT.  R.  116.  (0  2  Lev.  13.    176.     1   Vent   135. 

(/j^  1  T.  R.  116.  Bull.   N.   P.    137,   138.     Carth.   114, 

(y)  7  T.  R.  474.  115.     Tidd's  Piac.  3d  edit.  295. 

(r)7T.  R.  474.     2  Stra.  1271.     1  (?/)  Cartli.  288,    2S9.     2  Lev.  176. 

Wils.  tn.     Tidd's  Prac.  3d  edit.  295.  (v)  Tidd,  295. 
(.s)  2  Lev.  176.    3  Salk.  9.    1  T. 


u^ 


Ot^  THE  DECLARATION.  260 

nvestigation  of  the  proceedings,  that  in  fact  the  bill  was  filed,  II.  It.s  pans. 
or  by  original  the  suit  commenced,  or  in  an  inferior  court  the  ^"'^'^  ^"'^  ^ 

plaint  filed,  anterior  to  the  cause  of  action,  in  which  case  it  will 
^e  ground  of  error. (w)  By  an  express  provision, (r)  these  ob- 
jections arc  aided  in  the  court  of  Common  Pleas  at  Lancaster. 
And  in  trespass,  with  a  continuance  after  the  term  of  which  the 
declaration  was  entitled,  the  court  refused  to  arrest  the  judg- 
ment.(j/)  In  the  modern  action  of  ejectment,  the  declaration 
delivered  to  the  party  in  possession,  being  in  the  nature  of  pro- 
cess, is  entitled  of  the  preceding  term,  though  the  demise  bo 
laid  on  a  subsequent  day,  for  if  he  appear,  he  accepts  a  declara- 
tion eivtitled  of  the  subsequent  term,  and  if  he  do  not  appear,  he 
being  no  party  to  the  suit  against  the  casual  ejector,  cannot  take 
any  advantage  of  the  seeming  objection. (z) 

Where  the  proceedings  are  entered  with  a  general  memoran- 
.ium,  and  the  cause  of  action  appears  in  evidence  to  have  arisen 
after  the  first  day  of  the  term,  the  plaintiff  will  be  nonsuited,  un- 
less he  produce  the  writ,  and  thereby  shew,  *that  it  was  really  *  267 
sued  out  subsequent  to  the  cause  of  action  ;(a)  and  where  in  a 
-•.imilar  case  the  fact  complained  of  was  admitted  by  the  defend- 
ant's plea  of  son  assault  deinesr.c,  the  court  held  it  to  be  well 
■nough,  for  the  plaintiff  need  not  give  any  evidence  on  this  plejf, 
.ailess  to  aggravate  damages,  and  the  court  will  not  nonsuit  him, 
because  it  is  amendable  by  a  new  bill .(6)  When  the  declaration 
is  improperly  entitled,  the  plaintiff  may  on  payment  of  costs  ob- 
tain an  amendment,  even  after  error  brought.(ir)  It  may  also 
be  amended  at  the  instance  of  the  defendant,  if  necessary  for 
his  defence  ;  thus  where  the  declaration  is  entitled  of  the  term 
generally,  and  the  defendant  pleads  ^ilene  adndnistravit^fjl)  or  a 
tender  made  before  the  exhibiting  of  the  bill,  upon  which  ho 
would  give  in  evidence  an  administration  of  assets,  or  tender 
niadc  betAveen  the  first  day  of  term  and  the  day  of  suing  out 


fw)  Cardi.  11.3.     Rull.  X.   P.   1.'.?  J  Bl.  Kcp.  312.  Bull.  N.  P.  137.  Tidd's 

Viiilr.  '250.      Wai-d    is.    Honey  wood,  Prac.  .mI  edit.  294. 

■  nl.  19.  M.S.    307.  7  T.  n.  474-.    Ptim.  (6)  2  Sti-a.  1271.     1  Wils.  171. 

j:joctraei.t,  210.  217.  (<•)    I    Wils.  78.    7   T.  K.  474.      1 

(x)  39  i<  40  Geo.  III.  c.  103.  E.ist,  133.     8-T.  R.   629.  n.  b.  Tidd's 

iy)  Andr.  250.  Prac.  3d  edit.  295.    Ante,  265. 

(i)    Post,  vol.  2.   394.  ri    b.    Ruji.  {d)  Rep.   temp.    Hardw,   141.      X 

Ejectment,  20R,  209.     217.  bid.  433.     Tidd's  Prao   3d   edit.  20-4.. 


-267  OF  THE  DECLARATION. 

»  /  [mris.  the  AViil)  he  should  either  call  upon  the  plaintiflf  to  entitle  hib 
declaration  properly  ;(c)  or  plead  the  fiction  of  the  court  spe- 
cially, without  calling  upon  the  plaintiff  to  alter  his  declaration, 
or  produce  th.e  writ  on  the  trial. (y) 

Secondly,  Uie  Immediately  after  the  title  of  the  declaration,  follows  the 
Statement  m  the  margin  oi  the  venue  or  county  m  which  the 

"*^  2G8  facts  are  alleged  to  have  *occurred,  and  in  which  the  cause 
is  to  be  tried.  The  doctrine  of  venues  is  explained  and  eluci- 
dated by  Lord  Mansfield^  in  the  case  of  Fabrigas  v.  Mos- 
fijn,,{g)  and  in  the  note  in  Co.  Lit.  125.  a.  n.  1.  "  There  is  a 
*'  substantial  and  a  formal  distinction  as  to  the  locality  of  trials. 
"  The  substantial  distinction  with  regai'd  to  matters  arising 
"  ivit/mi  the  realm  is  where  the  proceeding  is  in  rein.,  and  where 
"  the  cfTect  of  the  judgment  could  not  be  had,  if  it  were  laid 
"  in  a  wrong  place,  as  in  the  case  of  ejectment,  where  posses- 
"•  sion  is  to  be  delivered  by  the  sheriff  of  the  county,  and  as 
"  trials  in  England  are  in  particular  counties  and  the  officers 
"  are  county  officers,  the  judgment  could  not  have  effect  if  the 
"  action  were  not  laid  in  the  proper  county,(/z)  So  with  re- 
"  gard  to  matters  that  arise  out  of  the  realm  there  is  also  a  sub- 
'*  stantial  distinction  of  locality,  for  there  are  some  cases  that 
"  arise  out  of  the  realm,  which  ought  not  to  be  tried  any  where 
"  but  in  the  country  where  they  arise ;  as  if  two  persons  fight 
*'  in  France.,  and  both  happening  casually  to  be  here,  one  should 
"  bring  an  action  of  assault  against  the  other,  it  might  be  a  doubt 
'*  Avhether  such  an  action  couid  be  maintained  here  ;  because, 
•'  though  it  is  not  a  ciiininal  prosecution,  it  must  be  laid  to  be 
»'  against  the  peace  of  the  king,  but  the  breach  of  the  peace  is 
j^  269  "  "''Ci'ely  local,  *ihough  the  trespass  against  the  person  istran- 

"  sitory.;/)     So  if  an  action  were  brought,  relative  to  an  estate 
"  in  a  foreign  country,  where  the  question  was  a  matter  of  ti- 


(e)  4  Esp.  Rep.  7'2.     2  S;iund.  1.  n.  tion,  N  and  title  Pleader,  C.  20.  Bac. 

1.  1  Stra.  038.  I  Wils.  39.  .304.  Cowp.  Abr.  Action,  A.   a.     Vin.  Abr.  Trial, 

456.     Tidd's  Prac.  fid  edit.   294.  SOg.  H.  a.  2.  8:c.  and  title  Place.     7  Co.  3. 

(/)   3   Burr.  1241.     Tidd's  Prac  (A)  7  T.  R.  .587,  588.     Post,  283. 

3d  edit.  294.     4  Esp.  Rep.  72.  (2')   Sed  quart;  the  contra  pacem  is 

{g)  Cov.'p.   176,   177.     And   as  to  net  traversable,  see  2  Bl.  Re£>.  1058» 

■vr-nuecin  gnnoral,  see  Com.  Dig.  Ac-  Vin.  Abr.  contra  pacem. 


JK^ 


OF  THE  DECLARATION.  269 

•>  tie  only,  and  not  of  damages,  there  might  be  a  solid  distinc-  i^-  ^'-^  P"^'^- 

Sccondlv,  th& 
"  lion  of  locality .(^')  veuue.  ' 

«  The  formal  distinction  arises  from  the  mode  of  trial ;  for 

"  trials  in  Ejigland  being  by  jury,  and  the  kingdom  beiiig  di- 

"  vidcd  into  counties,  and  each  county  considered  as  a  separate 

"  district  or  principality,  it  is   absolutely  necessary  that  there 

"should  be  some  county  where  the  action  is  brought  in  parti- 

"  cular,  that  there  may  be  a  process  to  the   sheriff  of  that 

"  county  to  bring  a   jury   from    thence  to  try  it.(^)    This  mat- 

•*  ter  of  form  goes  to  all  cases  that  arise  abroad  ;  but  the  law 

•^  makes  a  distinction  between  transitory  and  local  actions.     If 

*'  the  matter  which  is  the  cause  of  a  transitory  action,  arise 

within  the  realm,  it  may  be  laid  in  any  county,  the  place  not 

i)eing  material  ;  as  if  an  imprisonment  be  in  Middlesex,  it 
•  may  be  laid  in  iiurrey,  and  though  proved  to  be  done  in  Mid- 
'■i  dlesex.,  it  does  not  at  all  prevent  the  plaintiflP  from  recover- 
*'  ing  damages.  I'hc  place  of  transitory  actions  is  never  ma- 
>■'  terial,  except  where  by  particular  acts  of  parliament  it  is 
»'  made  so ;  as  in  the  case  of  churchwardens  and  constables, 
•'  and  other  cases  which  require  the  *action  to  be  brought  in  *  270 
''  the  proper  county.  The  parties  upon  sufficient  ground  have 
"  an  opportunity  of  applying  to  the  court  in  time  to  change  the 
«  x>en«e,  but  if  they  go  to  trial  without  it,  that  is  no  objection. 
*'  So  all  actions  of  a  transitory  nature  that  arise  abroad,  may  be 
*'  laid  as  happening  in  an  English  county  ;  but  there  are  occa- 
"  sions  which  make  it  absolutely  necessary  to  state  in  the 
"  declaration,  that  the  cause  of  action  really  happened  abroad ; 

as  in  the  case  of  specialties,  where  the  date  must  be  set 
<■'  forth,  if  the  declaration  state  a  specialty  to  have  been  made 
"  at  Westminster  in  Middlesex,  and  upon  producing  the  deed, 

it  bear  date  at  Bengal,  the  action  is  gone,  because  it  is  such 
"  a  variance  between  the  deed  and  the  declaration  as  makes  it 
<'  appear  to  be  a  different  instrument ;  but  the  laAV  has  in  that 
»  CLise  invented  a  fiction,  and  has  said,  the  party  shall  first  set 
**  out  the  desciiption  truly,  and  then  give  a  venue  only  for  form, 


(  .7)  1  Stra.  C46.     4  T.  K.  503.    Sed    ture  to  resort  to  abroad.     Id.  ibid.    6 
fiuc'c  if  there  be  no  courl  of  judiea-    East,  599. 

Q{,k]Ul     125.  a.  b. 


270  OF  THE  DECLARATION. 

//.  Its  part.'^.  a  and  for  the  sake  of  trial  by  a  videlicet  in  the  county  of  Mid- 
\caua.  '''  '^  "  dlesex,  or  any  other  county."  From  these  observations  it  ap- 
pears that  the  points  as  to  venues  may  be  considered  practically 
■with  reference,  1st.  To  wliere,  or  in  what  county  the  venue  is 
to  be  laid  ;  2dly.  How,  and  in  what  parts  of  the  declaration  it  is 
to  be  stated;  and  Sdly.  The  consequences  of  mistake,  and  when 
they  are  aided.  * 

1  St.  The  venue  is  either  local  or  transitory  ;  if  local,  it  musl 
be  laid,  and  the  cause  be  tried  in  the  county  in  which  the  injury 
was  really  committed,  or  the  defendant  may  demur  when  the  ob- 
*  271  jectibn  appears  on  the  record,  or  the  plaintiff  will  be  *nonsuited 
on  the  trial ;  but  if  transitory,  the  veiiue  may  be  laid,  and  the 
cause  tried  in  any  county,  subject  to  its  being  changed  by  the 
court  in  some  cases,  if  not  laid  in  the  county  where  the  cause 
of  action  really  arose.  We  will  consider,  when  the  venue  is 
local  or  transitory  at  common  law,  and  when  it  is  local  by  sta- 
tute. 
WTien  the  ve-  When  the  cause  of  action  could  only  have  arisen  in  a  panicu- 
nnc  IS  local,  jj^j.  p^^-e  or  county,  it  is  local,  and  the  venue  must  be  laid  therein. 
As  in  real  actions,  waste,  quare  bvfiedit  or  ejectment,  for  the  re- 
covery of  the  seisin  or  possession  of  land,  or  other  real  proper- 
ty.(/)  So  actions  though  merely  for  damages,  occasioned  by 
injuries  to  real  property,  are  local ;  as  trespass,  or  case  for  nui- 
sances or  waste,  &c.  to  houses,  lands,  watercourses,  right  of 
common,  ways,  or  other  real  property,  unless  there  were  some 
contract  between  the  parties  on  which  to  ground  the  action  ;(m) 
and  if  the  land,  &:c.  be  out  of  this  kingdom,  the  plaintiff  has  no 
remedy  in  the  English  courts,  if  there  be  a  court  of  justice  to 
resort  to  where  the  land  was  situate  ;(.?i)  and  when  the  parties 
consent  with  leave  of  the  court  to  try  a  local  action  in  another 
county,  such  consent  should  appear  upon  the  rccord.(o)  Where, 
however,  an  injury  has  been  committed  in  one  county  to  land, 
Sec.  situate  in  another,  or  whenever  the  action  is  founded  upon 


(J)  4  T.  R.  504.     2  Kl.  Rep.   1070.  (?;)  4T.R.  503.  1  Stra.  G40.  Coup 

Com.  Dig.  Action,  N.     7  T.   R.  58r,  180.    6  East,  51)8,  599. 

58S.     Cowp.  176.     7  Co.  2.  b.    .S  Lev.  {o)  Co.  Lit.  125.  b.  12G.  a.  n.  1.  Sir 

141.     Bac.   Abr.  Actions,  Local  and  T.  Raym.  372.    I  Roll.  Rep.  28.  Com 

Transitory,  A.     2  East,  498,  499.  Dig.  Action,   N.    11.      1   Wils.  2l'S.- 

<m)  M.  ibid.  Tidd's  Prac.  3d  «lit.'549. 


OF  THE  DECLARATION.  ^272 

two  or  more  material  *facts  which  took  place  in  diHereiit  coun-  77.  Its  fmru- 
ties,  the  venue  may  be  luicl  in  either///)  Sotoudlr,  the 

In  an  action  of  debt,  or  in  .'ici re  facias  on  a  recognisance  of 
bail  by  bill,  and  in  an  action  of  debt  on  a  judgment  of  a  court  of 
record,  the  venue  must  be  laid  in  the  county  wiicre  the  record  is  ; 
as  in  Middlesex,  upon  the  judgment  or  re*  ognisance  of  eiUier 
of  the  superior  courts  at  Westminster  ;(y)  and  in  scire  facias 
on  a  recognisance  of  bail  by  origitial  in  K.  B.  the  venue  may  he 
laid  in  Middlesex,  though  all  the  previous  proceedings  weie  in 
another  county. (r)  Upon  a  recognisance  of  bcdl,  in  C.  P.  the 
venue  may,  in  scire  facias,  be  in  the  county  where  the  bail-piece 
teas  taken,  or  in  Middlesex. (s)  But  a  scire  facias  on  a  judg- 
ment, being  only  a  continuation  of  the  former  suit,  and  not  an 
original  proceeding,  mu.^t  l)e  laid  in  the  county  wheie  the  venue 
was  first  laid,  the  defendants  being  supposed  to  reside  in  that 
county. (^)  And  when  the  action  is  at  the  suit  ot  anacimiiiistra- 
tor,  who  has  obtained  administration  in  a  peculiar  diocese,  the 
venue  should  be  laid  within  the  sauie,  though  a  mistake  in  the 
last  Ciise  Can  on;y  be  taken  advantage  of  by  special  demurrer. (z/) 
Debt  for  the  arrears  of  a  rent-charge  against  the  pernor  ot  the 
profits  not  being  the  original  granior  is  loca^,  the  defendant  being 
chargeable   in  respect  of  his  possession,  *and  not  on  the  con-  *   273 

tract-Cx;)  And  it  has  been  decided,  that  an  action  for  breach  of 
a  custom  or  by-law  of  a  town,  is  local,  but  that  debt  on  a  charter 
is  not.(W) 

In  all  actions  for  injuries  ex  delicto  to  the  Jierson  or  to  Jier-  "Wlien  the  re- 
,  ,  .     .  ,  .  ,  ,       nue  is  transi- 

sonal  property,  the  venue  is  m  general  transitory,  and  may  be  to,.y 

laid  in  any  county,  thougii  committed  out  of  the  jurisdiction  of 


(^)  7  Co.  1.     3  Loon.  lit.     2  T.  R.  lion    is  not  correct  ;   tlioiigli  in  some 

238.     7   T.  R.  5S3.     Com.   DIsj.   Ac-  dcpfree   sanctioned    by  what  fell  from 

tion,  N.  3.  11.  Mr.  Justice  BuUer,  in  .?  T.  1{.  .387.  i*^ 

(^)  Tidd,    1033.     Yin.   Abr.    Trial,  is  not  aground  of  special  demurrer. 

H.  a.  2.  pi.  17.     11. m.  1'J5.  Roll.  Abr.  908.  G.   pi.  4.  Garth.  373. 

(>•)  5  East,  401.  Selwyn,  N.  P.  678. 

(s)  5  Kast,  462.  n.  b.  Tidd,  1035.  (r)  Hob.  37.     \in.  Abr.  lit.   Trial, 

(/)  Tidd,  103.-..    n.  V.  II.  a.  2.  pi.  16. 

(?0  1  Roll.  Abr.   908.   G.  pi.  4.     3  (w)  2  Bl.  Rep.  1068. 
T.  R.    387.     8  T.  R.  407.     This  posi- 

VoL.  I.  r   25    1 


273  OF  THE  DECLARATION. 

II.   fts  pnriH.  our  courts,(,r)  or  of  the  king's  dominions  ;(i/)  and  this  even  in 

StcaiuUy,  the  actions  a£(ainst  a  member  of  parliament,  &c.(r)     Thus  actions 
venue.  "^^  .  . 

for  assaults,  batteries,  and  false  imprisonment,(c)  and  for  words 

and  libels, (A)  and  for  taking  away  or  injuring  personal  proper- 
ty,(c)  and    for  escapes  and  false  retvirns,(£/)  and    upon  bail-^ 
bonds,(t)  are  transitory.     In  general  also  actions  founded  upon 
contracts  are  transitory,  though  made,  and  even  stipulated  to  be 
performed  cut  of  the  kingdom,  for  dtbitum  et  crjntractus  su7il 
nvllius  loci.{X)      Thus  account,  assumpsit,  and  covenant  be- 
tween the  original  parties  to  the  deed,  and  debt,  and  detinue, 
are   in  general  transitoiy,  subject  to  the  courts  changing  the 
ve?iue  in  some  cases. (•,§■)     The  necessity  tliat  in  a  bailable  ac- 
*■   274         tion  by  original  in  the  King's  Bench,  the  venue  *do  not  vary 
from  the  original  writ,  must  also  be  kept  in  view. (A)     In  those 
transitory  actions  also  in  which  the  court  will  change  the  •veinie 
on  the  defendant's  application,  and   where  the  plaintiff  might 
wish  to  bring  it  back  again   to  the  county  where  it  was  first 
laid,  upon  the  usual  undertaking  to  give  material  evidence  in 
that  county,  it  is  necessary  to  lay  the  venue  in  the  first  instance 
in  the  county  in  which  such  material  evidence  can  be  given. (z) 
The  venue  in       In  an  action  upon  a  lease  for  non-payment  of  rent  or  other 
^tionson  ea-  j3,.gj^(,}.j  of  covenant,  when  the  action  is  founded  on  the  privity 
of  contract  it  is  transitory^  and  the  venue  may  be  laid  in  any 
county  ;  but  when  the  action  is  founded  on  ihe  privity  of  estate .^ 
it  is  locals  and  the  venue  must  be  laid  in  the  county  where  the 
estate  lies. (7)     These  points  may  be  considered  as  they  arise  ; 
1st.  Between  the  original  parties  to  the  lease  ;  2dly.  In  the  case 


(.r)  Cowp.  161.  Com.  Uig.  tit.   Ac-  C/)Coii\.   I)i;.j.  Action,  N,    12.     1 

tioii,  N.  12.  S.iuiul.    74.   241.    b,     (Zi>\\\}.   ISO.       1 

0/)   Id.   ibid.       2   Bl.   Rep.   105S.  Stia.  612.     Lord  Kaym.  1352. 

&i7(7»*/-e'Co\vp.  170.  (^•)  (,ilb.  C.  P.  84.     I   Saund.  74. 

(r)  4  East,  102,  IGJ.  n.  2.     "\\'Iion  t!ic  court  will   cliaiige 

(ft)  Cowp.  161.     Go.  Lit.  282.  the  venue,  see  Tidd's  Prac.  3d  ed,  543 

(A)  1  T.  li.  571.  to  556.  c.  XX vi. 

(c)    Com.    Dig-.     Action,    N.    12.  (A)  Ante,  246.  24'J. 

Salk.  670.     Vin.  Abr.  Trial,  IL  a.   2.  \i)  6  East,  433,  4.34. 

pi.  12.  (  /■)  As  to  the  four  different  descrip- 

(J)    1    Wils.    330.     Salk.    670.      1  tions  of  privitie.s,  and  in  general  how- 
East,  114.  f:ir  they  affect  the  venue,  see  the  ar- 

(e)  Fort.    3GG.      Stra.   727.      Lord  gnment  in  3  T.    R.  394.     Walker's 

flavin.  1455.  case,  3  Co.  23.     And  1  Saund.  237  to 

242.  and  the  notes  5  and  6, 


OF  THE  DECLARATION.  274 

ot  an  alienation  of  the  estate  of  the  lessor;   and   3dly.  Where  ^i-  It  <i  parts. 
the  estate  of  the  lessee  has  been  assigned.  '^^.*:°'!'"^ '  ^^^ 

1st.  In  an  action  of  debt  or  covenant  by  the  lessor  against  the 
lessee.,  or  by  the  lessee  against  the  lessor,  the  action,  being  found- 
ed on  the  vwcve  privity  of  contract y\s  transitory ^  and  though  the 
land  lie  abroad,  the  action  may  be  brought  in  England  ,-(-X:)  and 
debt  in  the  detinet  only,  by  the  lessor  against  the  executor  of 
the  lessee,  is  *transitory  ;  but  if  the  action  against  the  executor 
be  in  the  debet  and  detinet,  he  being  charged  as  assignee,  the  ' 

venue  is  local. (0 

2dly.  An  action  of  covenant  by  the  assignee  of  the  reversion 
against  the  lessee,  or  by  the  lessee  against  the  assignee  of  the 
reversion,  upon  an  express  covenant  contained  in  the  lease,  and 
running  with  the  estate  in  the  land,  is  transitory  by  the  opera- 
tion of  32  Hen.  VIII.  c.  34.(;rt)  winch  transfers  the  privity  of 
contract  with  respect  to  such  covenants,  to  and  against  the  as- 
signee of  the  lessor,  in  the  same  plight  as  the  lessor  had  them 
against  the  lessee,  or  the  lessee  against  the  lessor.(«)  But  in 
debt  by  the  assignee(o)  or  (levisce(/i)  of  the  lessor  against  the 
lessee,  which  is  sustainable  at  common  law,  and  is  founded  on 
the  privity  of  estate,  the  action  is  local. 

3dly.  If  an  action  of  debt  or  covenant  be  brought  by  the  les- 
sor,C</)  or  his  personal  representatives,(r)  or  by  the  grantee  of 
the  reversion(«)  against  the  assignee  of  the  lessee,  or  the  execu- 
tor of  the  lessee  in  the  debet  and  detinet,(;)  the  venue  is  local, 
and  must  he  laid  in  the  county  *where  the  land  lies  \{u)  and  if  ^.  q^/- 
the  land  be  out  of  England,  no  action  can  be  supported  in  this 


{k)  1  Saiiiid.  241.  b.  „.  G.  7  Co.  '2.  a.  {<))  1  Sauncl.  238.  '241.  c.  n.  C.    Cro. 

2Slra.  7/6.    2.Salk.  651.    3  Lev.  154.  Car.    183.      I   Wils.   165.    Vin.   Abr. 

6  Mod.  194.     2  East,  .179.     Bac.  Abr.  Trial,  H.  a.  2.  pi.  20. 

lit.  Actions  local  and  transitory.  A.  a.  (/»)  Sir  W.  Jones,   53.     \'m.   Abr 

(/)  Gilb.  C.  P.  91.    Gill).  Uei.t,  403.  Trial,  II.  a.  2. 

2.  Lev.  80.  Vin.  Abr.  tit.  Trial,  II.  a.  (7)  2  E.ast,  579,    5S0.     Cartl).   182. 

2.  pi.  22.  6  Mod.  194.     7  T.  R.  583.     1    Sliov. 

(m)   I    Saund.   "2^7.   241.   b.   n.    C.  190.  199. 

Carth.  183.     1   Wils.    165.     3  T.   11.  (r)  Latih.  197. 

394.     1  Show.  199.     Vin.  .\hr.  Trial,  (.!)  1  Saiind.  241.  c.  n.  6.     7  T.    P, 

H.  a.  \A.  20.     Privies  in  bloo<l,  as  llie  5P,3.       2   P'.ast,   580.      1    Show.     190 

hoir  of  lessor,  miijjbt  sue  in  covenant  199.     Carth.    182.     3   Mod.    S'3C).      l 

at  coiumoii  law.  3  T.  R.  .395.  Salk.  80. 

(«)  Id.  ibid.  1  Saiiiid.  237-  241.  b.  (/)  Supra,  note  (/).     3  Kcb.  .TS. 

■n.  C.     3  T.  R.  iOl,  402,  (u)  2  East,  580, 


276  OF  THE   DECLARATION'. 

//.  Its  parts,  country,  (xj)     The  action  at  the  suit  of  the  lessor  against  theas- 

Sccoiidly,  the  si:^nee  of  the  lessee  was  eiven  by   the   common  law,  und  was 
veime.  .  o  j 

local  in  respect  of  the  /irivity  q{  estate.,  the  privity  of  contract  being 

destroyed  by  the  assip;nment ;  and  the  assignee  of  the  rever- 
sion must  also  sue  the  assignee  of  the  term  in  the  county 
where  the  land  lies,  because  the  statute  32  Hen.  VIII.  transfers 
the  privity  of  contract  to  the  assignee  in  the  same  manner  as 
the  lessor  had  it.(w)  I'or  the  same  reason,  covenant  by  the  as- 
signee of  the  lessee  against  the  lessor,  or  the  grantee  of  the 
reversion,  is  local,  for  it  lies  at  the  common  law,  in  respect  of 
the  privity  of  estate,  which  is  always  local. (x) 
Venue  -tthpn  The  Statute  21  Jac.  I.  c  4.  s.  2.(j/)  enacts,  that  in  "all  in- 
tute.  ^  ■*'  "  formations,  declarations,  Sec.  for  any  offence  against  any  fienal 
"  statute.)  whether  on  the  behalf  of  the  king  or  any  other  person, 
"  the  offence  shall  be  laid,  and  alleged  to  havt-  been  comniit- 
"  ted,  in  the  county  wliere  such  offence  was  in  truth  commit- 
"  ted,  and  not  elsewhere,  or  the  defendant,  upon  the  general 
"  issue,  shall  be  found  not  guilty  ;"  and  in  a  penal  action  for 
the  omission  of  u  local  duty,  prescribed  by  a  statute,  the  ver.ue 
is  local  (z)  Lord  HAt's  opinion  appears  to  have  been  ihat 
■*■  ^n  ^^'^^  statute  extended  to  subse'./uent  statutes, (a)  but  from  *several 
decisions, (i5i)  and  from  the  circumstance  of  tlie  legislature  hav- 
ing introduced  an  express  similar  clause  in  subsequent  penal 
acts,  passed  even  in  the  same  session  as  the  above  statute,  this 
opinion  appears  to  be  erroneous. (c)  It  therefore  follows,  that 
in  penal  actions,  founded  on  statutes  passed  since  the  21st  Jac. 
L  c.  4.  the  venue  is  transitory,  as  at  common  law,  unless  other- 
wise directed  by  the  particular  act,  as  in  the  case  of  usury,  &c. 
Upon  the  common  lav/  principle,  where  there  are  two  material 


(f)  t  Show.   190.    109.     Bac.  Al^r.         (6)  Parker's  Rep.  186.     Andr.   25. 

Acuons  local  and  transitory,  A.  a.  and  2  Stra.  1081.   1  Salk.  ^y7'2,  373.  5  Mod. 

Bee4T.  R.  503.     Ante,  269.  n.  (./).  425.     Carth.  465.     Ld.    Raym.   370. 

(to)  I  Raund.  241.  c.     I  Show.  199.  Com.  Dig.  tit.  Action,   N.    10.     Bac. 

(x)  5  Co.   17.   a.     F.  N.  K.  146.     1  Abr.  tit  Action,  qui  tarn,  C.    1  Saund. 

Saund.  241.  c.  n.  6.  312  c.  in  the  notes,  and  see   the  con- 

(r)  And  see  31  Eiiz.  c.  5.  st ruction  on  the  3d    .Tac.  I.  c.   8.     2 

(:)  4  E:;st,  393.  ""  Eai^*,  359.    And  Selwyn,  N.  P.  562.  n. 

(a)  Ld.  Raym.  373.    P.irkcr's  Rep.  117.     3  Anstr.  871. 
186.     2   Sdvvyn,  N.    P.   562.  n.  117.         (c)  See  2lJnc.  I.  c.l7.      12   Ann. 

Bull.   N.  P.  106       Tidd's  Practice,  stat.  2.  c.  16.     Andr.  25. 
Jd  cd.  374. 


OF  THE  DECLARATION.  277 

facts  to  constitute  the  offence  against  a  penal  statute,  and  one  U-  /"■  parts. 
happened  in  one  courfty,  and  the  other  in  another  county,  the  ^^"if^"'"-^ '  ^'^'^ 
vntue  may  be  Udd  in  either ;  as  where  a  usurious  contract  has 
been  made  in  London^  and  the  usurious  interest  taken  In  Mid- 
dlesext  or  vice  versa  ;{d)  and  this  statute  does  not  afi'cct  a  reme- 
dy given  to  the  party  grieved. 

Some  actions  against  particular  persons,  which  would  other- 
wise be  transitory,  must,  by  different  statutes,  be  laid  in  the 
county  where  facts  were  committed,  or  the  plaintiff  will  be 
nonsuited  ;  as  actions  upon  the  case  or  tres/iass  against  justices 
of  the  peace,  mayors,  or  bailiffs  of  cities  or  towns  corporate, 
headboroughs,  port-reves,  cor.stables,  tithing-men,  church- 
wardens. Sec.  or  other  persons  acting  in  their  aid  and  assistance, 
or  by  their  command,  for  any  thing  done  in  their  official  *ca-  ^  278 
pacity  :(c)  and  actions  against  any  person  for  any  thing  done 
by  him  as  an  officer  of  the  excise,^/)  or  custonis.,(g)  or 
against  any  other  person  acting  in  his  aid,  in  execution  or  by 
reason  of  his  office.  And  by  the  statute  42  Geo.  III.  c.  85.  9. 
6.  the  provisions  of  the  statute  2  I  Jac.  I.  c.  12.  with  regard  to 
the  venue.,  Sec.  are  extended  to  all  persons  having,  holding,  or 
exercising,  or  being  employed  in  amj  public  employme7it,  or 
any  office,  station,  or  capacity,  either  civil  or  military,  either 
in  or  out  of  the  kingdom  ;  and  who  under  and  by  virtue,  and 
in  pursuance  of  any  act  or  acts  of  p.u-rKaiient,  Sec.  have  by 
virtue  of  any  such  employment.  Sec.  power  or  authority  t 
commit  persons  to  safe  custody  :  And  all  such  persons  having 
such  power  and  authority  as  aforesaid,  shall  have  and  be  en- 
titled to  all  the  piivileges,  benefits,  and  advantages,  given  by 
the  provisions  of  the  said  act,  as  fully  and  effectually  to  all  in- 
tents and  purposes,  as  if  they  had  been  specially  named  there- 
in. Provided  always,  that  when  any  action,  bilh  plaint,  or  suit, 
upon  the  case,  trespass,  battery,  or  .false  imprisonment,  shall 
be  brought  against  any  such  person  as  is  in  this  act  described 
as  aforesaid,  in  this  kingdom,  for  or  upon  any  act,  mutter  or 


{d)  2  T.  Tl.  238.     7  Co.   1.  7  T.         (/)  23  Geo.  III.  c.  70.  s.  34. 

R.   58.3.       2  B.  k  P.   381.  Ante,         (^)  24  Geo.  HI.  scss.  2.  c.  47.  s.  55. 

•271,  272.  and  see  28  Geo,  III.  c.  37.  s.  23. 

^)  21  Jac  J.  f-.  12.  s.  5, 


278  ^f  '^'^11'   DECLARATION. 

11.  Its  pari!:  thinn-  done  oul  of  the  kingdom,  it  shall  be  lawful  for  the  plain- 
Socondlv,  the  tiff  bringing;  the  same,  to  lay  such  act,  m'^itter,  or  thing  to  have 
been  done  in  licstinpister,  or  ui  any  county  where  the  person 
against  whom  any  such  action,  bill,  plaint,  or  suit,  shall  be 
brouglit,  shall  then  reside.  But  the  vfnu^  in  an  action  against 
*'  279  ^  constable,  8cc.  for  an  act  *not  done  in  the  execution  of  his 
office,  may  be  laid  in  any  county. (A) 

So  actions  against  persons  acting  under  the  acts  relating  to 
highioays^{i)  or  iurn/iikes,(j)  or  the  m/lilia,{k)  and  various 
other  acts  are  local  by  express  provision.  And  so  by  the 
Jl'ilch  judicature  act,  if  a  transitory  cause  of  action  arising  in 
Wales.,  be  brougl)t  in  any  court  out  of  Wales.,  and  the  -venue  be 
laid  out  of  the  principality,  and  the  plaintiff  do  not  recover  10/. 
a  judgment  of  nonsuit  may  be  entered  against  him.(/) 
Mode  of  sta-  The  venue  is  thus  stated  in  the  margin  of  the  declaration, 
n'ue.  '^  *^'  "  ^tiddlesex,  to  wit."(?n)  Such  venue  m  the  margin  will 
aid  but  not  prejudice,  and  in  civil  cases,  if  the  name  of  a.  filace 
on/ij,  and  no  county,  or  a  wrong  county  be  stated  in  the  body 
of  the  declaration,  it  will  suffice,  because  the  place  is  always 
construed  to  refer  to  the  county  in  the  margin,  though  another 
county  has  been  mentioned  ;  and  on  the  other  hand,  whei'e  the 
proper  venue  is  laid  in  the  body  of  the  declaration,  the  county 
in  the  margin  will  not  vitiate  it.(/)  But  in  crimiyial  cases  the 
rule  is  more  strict,  and  though  the  county  in  the  margin,  when 
*  280  cx/ires.sly  referred  to,  *is  sufficient,  yet  it  must  either  be  named 
in  the  body,  or  so  exjiressly  referred  to  in  all  cases. (w) 

In  stating  in  the  body  of  the  declaration,  the  venue  or  place 
where  the  facts  have  occun'ed,  it  is  usual  to  name  a  parish, 
town,  or  hamlet,  or  other  place  (not  being  a  hundred)  as  well 


(A)    1  Stra.  UG.      3  Rurr.  ir4il.     2  to  signify   the  county,  but  was  only 

Esp.  Uep.  5 1'i.      3  Esp.  Rup. 'J-2G.      5  a  denotation  of  each  section  or  para- 

T.  11.  1,  '2.     4  T.  R.  535.  graph     in     the     record.     Cas.  temp. 

(i)  13(ieo.  III.  c.  78.  s.  81.  Hardw.  .344.  In  in(lictments,the  words 

(./)  13  Geo.  III.  c.  84.  s.  85.  "  to  wit"  are  frequently  omitted. 

(A-)  4'2  Geo.  111.  c.  <J0.  s.  178.  (Z)  I  Saund.  30S.  n.  1.     3  Wils.  ,339. 

(/)  13  Geo.  III.  c.  51.    1  New  Rep.  3  T.  R.  387.     -2  Bl.  Rep.    847.     Rep. 

21)7.  temp.    Hardw.   343.         Barnes,   483. 

(jh)  Lord  Ilardwieke  was  of  opinion  Com.  Di.^.  Pleader,  C.  20. 
that  the  word  ss,  in  the  margin  of  the         (?»)  1  Saund.  308.  n.  1.    2.  Nolan's 

declaration,  was  not  originally  meant  Poor  Law,  144.    2  East,  66. 


OF  THE  DECLARATION.  280 

as  the  county.  («)  In  Lovd-m  it  was  formerly  necessary,  and  -W.  Tin  parts. 
is  Still  the  practice  to  state  some  parish  and  ward,  though  in  ^....j^^.  • 
other  places  a  city  or  town,  without  naming  any  particular  pa- 
rish, was  sufficient.(o)  In  criminal  cases  it  is  still  necessary 
to  name  some  pai  ish  or  town,  Sec.  as  well  as  the  county,  and 
the  statement  in  an  indictment  that  a  party  committed  perjury 
at  Guildhall  in  London  is  insufficient.(/0  But  in  civil  actions 
in  the  superior  courts,  as  the  jury  is  no  longer  de  vicineto,  the 
statement  of  a  county  alone  may  be  sufficient,^!/)  unless  where 
a  local  description  is  necessary,  as  in  replevin,  6{.c.(r)  And 
this  even  on  penal  statutcs,(.v)  unless  part  of  the  penalty  be 
given  to  the  poor  of  tl.c  parish  in  which  the  offence  was  com- 
mitted, when  the  name  of  the  parish  is  material. (?) 

In  inferior  courts,  unless  in  the  courts  of  the  counties  pala- 
tine and  a  few  other  courts  it  is  necessary,  in  addition  to  the 
statement  of  the  county  as  a  -venue.)  to  aver,  that  every  mate- 
rial fact  took  place  within  the  *jurisdiction  of  the  court  :  as  in  *  281 
assumji&it,  as  well  that  the  promise  or  contract  was  made,  as 
that  the  goods  were  sold,  or  the  money  had  and  received,  &c. 
ivithin  the  jurisdiction  of  the  court,  and  if  the  allegation  be 
omitted,  the  declaration  will  be  insufficient,  even  after  ver- 
dict ;(«)  but  as  to  such  matters  as  are  stated  only  in  aggrava- 
tion of  damages,  and  might  be  omitted,  it  is  not  necessary  to 
allege  that  the  same  arose  within  the  jurisdiction. (x-) 

When  a  transitory  matter  has  occurred  abroad,  it  may  in 
general  be  stated  to  have  occurred  in  any  Engli&h  county,  with- 
out noticing  the  place  where  it  really  happened  ;  but  if  the  real 
place  abroad  be  stated,  (which  is  necessary  when  a  deed  or  bill 
of  exchange  or  other  instrument  bears  dale  there,)  it  should  be 
shewn  under  a  scilicet,  that  it  happened  in  an  English  county, 
fis  for  instance,  "  in  Minorca,  to  wit,  at    M'cst  minster,  in  the 


00  Co.  Lit.  1'25.  a.  n.  2.  (s)  Co.  Lit.  125.  b.     24  Geo.  IL  c. 

(o)  Cio.J:ic.  30r.      Leach,  C.  L.  IS.     3  Esp.  Rep.  219.     2  Sauiid.  370. 

9-'"-  1).  9.     V.'illcs,  09.  n.  a. 

{{>)  Lcacli,  C.    L.  928.      Co.  Lit.  (<)  3  Esp.  Rep.  219. 

1-5-  ^-  "•  ■2-  0')  t  Saui.d.  74.  n.  L     1  T.  R.  151 . 

(7)  Co.  Lit.  125.  b.  n.  2.    Viii.  Abr.  8  T.  R.  127.     Cro.  J.ic.  502.     6  T.  R. 

Trial,  H.  a.  fi.      2    East,    501.     Cro.  7C4. 

Eliz.  73-2.     1  Saimd.    8.  a.     2  H.  Rl.  (r)  1  Saund.  ?4.  n.    1.     Bac.  Abr 

}G1.     Liitw.  2.57.  Pleas,  E.l. 

(r)  2  East,  501.    1  Saund.  347.  n.  ;. 


281  OF  THE  DECLARATION. 

IT.  Itn  parts,  co^^ty  of  Middlesex ." (iv)      And  this  is  advisable  even  in  cases 

Secondly,  the  of  bills  of  exchange  drawn  in  this  country,  and  dated  at  a  par- 
venue.  ..•     1  T        ^    ^      T  •  »      p  1 

ticuiar    place. (wj     In   statuig    a    matter   of  record,  no  venue 

seems  necessary,  as  the  record  must  be  presumed  to  be  where 

the  court  is  ;(x)  but  in  pleading  an  Irish  judgment  it  may  be 

otherwise. (i/) 

In  general  the  venue  should  be  laid  distinctly  to  every  mate- 
rial traversable  fact,(z)  and  formerly  the  omission  was  consider- 
ed fatal,  though  issue  were  taken  upon  another  point. (a)  But 
^  282  *even  in  a  local  action,  as  in  case  for  an  injury  to  a  watercourse 
no  precise  local  description  of  the  nuisance  complained  of  is 
necessary,  and  provided  the  county  be  properly  stated,  it  is  suf- 
ficient, except  in  replevin. (<J)  And  where  there  are  several 
facts,  yet  if  the  sentences  in  which  they  are  stated  are  coupled 
with  the  conjunction  '■'■  and"  the  {^r^ivcnue  will  apply  to  all  the 
facts. (c)  So  the  performance  of  a  contract  will  be  inferred  to 
have  been  at  the  place  where  it  was  entered  into<((/)  though  it 
is  usual  to  repeat  the  venue  to  each  averment. (e)  No  venue, 
however,  need  be  laid  to  matter  of  inducement,  when  not  tru' 
vcrsablc,  and  which  consequently  cannot  be  tried^{f)  nor  is  a 
•wf;77/r  necessary  in  general  to  a  negative  allegation. (5*) 

Where  a  parish  is  merely  stated  as  a  venue,  the  cause  of  ac- 
tion, though  proved  to  have  arisen  in  a  different  place,  will 
sustain  the  declaration  •,(g-)  as  in  debt  on  the  game  laws,  or  in 
an  action  of  hue  and  cry  against  the  hundred  ;(/j)  but  when  part 
of  a  penalty  is  given  to  the  poor  of  the  parish,  the  mmie  of  the 
parish  is  matter  of  substance,  and  the  offence  must  necessarily 
be  laid  and  proved  to  have  taken  place  therein. (?)     So  in  an  ac- 


(7i')  Cowp.  iro.  irr,  S.     Ante,  -270.  (c)  1  SaunJ,  229.   n.  2.      Ci-o.  .Tac. 

7T.  R.  243.     1  Saund.  74.  n.  2.     5  T.  443.    2  B.  k  P.   156,  157.    Com.  Dig, 

K.  f.lfi.  tit.   Pleader,  C.  20.     Hard.,61.  Lutw. 

(vy)  Chitly  on  Bills  of  Exchange,  '2d  237.  Ante,  250.  2  Hale's  P.  C.  179. 

edit.  322.  n.  c.  (d)  Cm.  Eliz.  880.     Com.  Dig.  tit. 

(,r)  1  Vent.  246.                                 '  Pleader,  C.  20. 

0/)  5  East,  473.  (<■)  Com.  Dig.  tit.  Pleader,  C.  20. 

(j)  Corn.  Dig.  tit.  Pleader,  C.   20.  (/)    Plowd.    191.     Com.   Dig.  tit 

5  T.   R.   620.     Ante,   258.     2  Hale's  Pleader,  C.  20.     2  Stra.  817. 

P.  C.  179.  (5)  Ante,  259.  n.  i.      5  T.  R.  616. 

(fj)  2  Leon.  22.  (s)  2  East,  503. 

(6)  2  E.-ist,  !50.3.     Pogt,  vol.  2.   364.  (A)  Id.  ibid.       3  Esp.  Rep.  219.     i? 

u.  0.     Sed  qiiterSf  see  Co.  Lit.  125.  b.  Saund.  376.  n.  9. 

(0  Id.  ibid.     Peake's  L.  E.  199. 


OF  THE   DECLARATION'.  :282 

*.ior.,  though  not  local,  if  the  situuiion  of  land,  or  othe?  real   JT.  lis  parts. 

,'  -,       ,       .  ,     *  •!        ^      1  •        .      ■       Sn-cmliv,  the 

property  be  described,  tnough  *unnece^^stu•liy,  to  be  smi.ite  in  ycime.  " 

a  particular  parisii  or  place,  the  pluiniiH'  will  faii  on  the  trial  if         *    283 

there  be  a  mistake. (y)     But  if  a  fact  be  stated  to  have  occurred 

'«  at  or  near"  a  particular  place,  the  mistake  iviay  not  be  so  mti- 

terial  ;(^)  and  when  it  is  doubtful  whether  the  place  where  a 

navigation,  Sec.  is  alleged  to  lie,  is  stated  in  the  declaration  as  a 

veniiCy  or  as  a  local  description,  it  will  be  referred  merely  to 

the   venue  and  need  not  be  proved  to  be  at  such  place  U)     The 

mode  of  describing  the  place  or  vmuc   in  trespass,   replevin, 

and  other  particular  actions,  is  stated  in  the  notes  to  the  several 

precedents  in  such  actions. (?«) 

At  common  law.  if  it  appeared  u/wn  the  record^  that  the  con-  ronscfinerr- 
tract  or  cause  of  action  arose  in  a  county  different  from  that  in  Jif  vt'iila'^  antl 
wiiichthe   x'^«?if  was  laid,  it  was  error.C^O     But  by   16   and    17  when  aided. 
Car,  II.  c.  8.      "  After  a  A'crdict.  judgment  shall  not  be  stayed 
♦'  or  reversed,  for  that  there  is  no  right  venue,  so  as  the   cause 
"  were  tried  by  a  jury  of  the   proper  county,  or  place  where 
"  the  action  is  laid  ;"  and  this  statute  extends  not  only  to  those 
cases  where   there  is  a  wrong  venue  in  the  p  roper  county,  but 
also  to  those   where    the  cause  has  been  improperly  tried  in  a 
wrong  county,  and  whether  the  objection  appear  on  the  record 
or  not  (o)     Aiul  the  stat.  4  Ann.  c.  16,  s.   2.   extends  this  pro- 
vi.sion  to  a  judgment  by  confession   *nil  (licit,  ov  non  .sum  infor-  vjf   284 

matus.{/i)  And  the  same  provision  is  extended  to  penal  actions 
by  the  4  Geo.  II.  c.  26. (y)  But  as  inferior  courts,  not  of  re- 
cord, are  not  included  in  these  acts,  a  declaration  in  the  couniv 
jurt,  oniiiting  the  necessary  allegation  as  to  the  subject  matter 
yf  the  action  having  arisen  within  the  jurisciiciion,  will  still  bo 


(./)  1  Esp.  Kcp.  '2r.3.     3  R.   k   P.  {<,)  I   .Simud.   247.  n.  .3.     7  T.   M. 

e-81.     2  Lev.   5,?4.     Salk.   4.'i'2.     Bac.  58.5.     2  East,  580.     2  Suund.  5.  g.   in 

,\br.  TrcsiJiiss,  K.     Stf;i.  59.>.  G  East,  notes. 

55'2.                                                             ■  (/j)    2    Com.    «ep.    555.       Bar.ics, 

(/:•)  Peake's   T,.  E.    K'D.      4  T.    11.  4S.i.     Liitw.  '2.57. 

<S.  .ifii.     1  R.  St  l>.  CMS.  (7)  Willes,  5yo.  GOI.     Tiil.l's  Pr.i(„ 

(/)  '2  East,  497.  fxl  edit.  S.3!),  840.  r>ut  see  4  East,  ?.K7, 

(;«)  Post,  vol.  2.  1  Saund.  ;ii~.  n.  1.  .'588.  v.hero  the  t'civ'/c^  was  set   aside, 

(.•()  Com.  Dig.  Ut.  Aeiioii,  X.  C.    1.  lI)onp;li  no  ohjcoiion  taken   at   ^.'■.  P. 

Sauiul.  74.  n.  2.  ante,  2S0.  n.  {js)    («). 

\^oi..  I.  r  2r>  1 


284  OF  THE  DECLARATION, 

TT.  Its  parts,  insufficient,  even  after  verdict.(r)  Hence  it  follows,  that  even 
Secondly,  tiie  jjj  local  and  penal  actions  in  the  su/ierior  Qouris,  the  only  modes 
of  objecling  to  the  vcjme,  are  by  demurrer,(s)  or  at  the  trial  as  a 
ground  of  nonsuit,(/)  except  in  the  action  of  ejectment,  in  which 
also  a  difficulty  would  arise  with  respect  to  the  execution,  be- 
cause the  sheriff  of  one  county  cannot  deliver  tne  possession  of 
land  in  another.(«)  In  luca/  actions,  if  the  venue  be  laid  in  the 
wrong  county,  and  the  objection  appear  upon  the  record,  it  is  clear 
that  the  defendant  may  demzir  ;{u)  and  if  it  do  not  appear  on  re- 
cord, may,  under  the  general  issue,  avail  himself  of  the  objec- 
tion at  the  trial  as  the  ground  of  nonsuit  ;{v)  as  in  trespass  or 
ejectment,  on  the  plea  of  not  guilty,(w)  or  in  replevin,  on  the 
pleaof  ?.'on  cefnt.{^')  And  even  in  transitory  actions  an  unne- 
cessary precise  description  of  local  situation  may,  if  erroneous, 
^'  285  l^e  fatal  on  the  trial ;(?/)  though  *\vhere  the  description  is  rather 
by  way  oi  venue  it  will  be  otherwise.Cz)  And  if  a  local  descri/i- 
tiony  or  venue^  when  necessary,  be  omitted,  it  is  not  matter  of 
nonsuit,  but  of  demurrer,  or  arrest  of  judgment  ;(a)  and  by 
pleading  over  to  the  merits,  any  formal  defect  in  the  venue  is 
aided  ;(6)  and  in  transitoj-y  actions  the  omission  of  a  venue  is 
aided  at  common  law  by  a  judgment  by  default,  because  the  de- 
fendant thereby  admits  that  there  is  nothing  to  try,(c)  and  any 
objection  to  the  mode  in  which  the  venue  is  stated,  must  be 
taken  by  demurrer. (c?) 

ThJrfllr,   the        What  is  termed  the  commencement  of  the  declaration  follows 
i-omineiice-        ^,  .       .  .  ,  ,         ,  .  .    , 

meut  the  venue  m  the  margm,  and  precedes  the  more  circumstantial 

statement  of  the  cause  of  action.     It  contains  a  statement,   1st* 

Of  the  names  of  the  parties  to  the  suit,  and  if  they  sue  or  be 

sued  in  another  right,  or  in  a  political  capacity,  (as  executors, 

assignees,  or  cjui  tarn,  Sec.)  of  the  character  or  right  in  respect 


()•)    Ante,  280.     1  T.  R.   151.     I  (x)  I   Saund.  34".  n.  1.     Post,  vol. 

Saund.  74.  n.  I.  2.    364.  n.   (e).  ace.        2  Gilb.   Rep. 

(s)  1  Wils.  165.  166.     2  Wils.  355.  semb.  contra. 

(0  7T.  R.  588.  2  East,  580.  Covp.  {ij)  Ante,  283.  n.  {j). 

410.     2  Bl.  1033.  (c)  Ante,  283.  n.  1. 

{n)  7  T.  R.  587.  588.     Cowp.   170.  (n)  2  East,  499.  2  Wils.  354.     Post, 

Ante,  261.  vol.  2.  364.  n.  (e). 

(?0   1  Saund.  241.   c.     Cavtli.    182.  (/>)  2  Ld.  Raym.  1039.      Dyer,   15. 

7  T.  R.  5S8.  2  Rl.  Rep.  1070.  3  T.  R.  a.    Com.  Dig.  Pleader,   85.     3  T.   R. 

387.     1  Wils.  165.  387.     Post,  vol.  2.  354.  n.  {e). 

iy)  Supra,  note  (i).     1   Sid.  287.  (c)  Lutw.  237.     Cro.  EUz.  880. 

\iv)  Id.  ibid.     Stra.  595.  {d)  3  T.  R.  387, 


OF  THE  DECLARATION.  285 

of  which  they  are  parties  to  the  suit.     2dly.  Of  the  7node  in   //.  /cv  paints. 

which  the  defendant  has  been  brought  into  court;  and,  3dly.  A  Thirdly,  the 

_      c'lmraeuce- 
hrief  recital  of  the  /brm  of  action  to  be  proceeded  in.     It  is  mcnt. 

obvious  that,  independently  of  express  regulation  or  precedent, 

some  introduction  to  the  substantial  statement  of  the  cause  of 

action  would  be  necessary,  and  the  commencement  adopted  in 

practice  is  useful,  as  pointing  out  that  the  defendant  is  duly  in 

court  to  answer  the   complaint,  and   concisely  intimating   tl)e 

character  in  which  the  parties  sue  or  are  sued,  and  the  *nature         *   23G 

of  the  action,  by  which  the  parties  interested  in  the  pleadings 

arc  enabled  more  readily  to  direct  their  attention  to  the  subse- 

ffuent  parts  of  the  declaration. (t/) 

When  the  dfftndaiit  has  been  arretted  or  served  with  process 
by  a  ivrong  7xame^  the  plaintiff  may  declare  against  him  by  hie 
right  name,  whether  he  has  appeared  or  not,  and  though  the 
plaintiff  has  entered  an  appearance  according  to  the  statute. (e) 
In  such  case  in  the  King's  Bench,  it  is  usual  to  state  the  fact 
thus  : — "  to  wit,  A  B  complains  of  C  Z),  arrested  (or  if  not 
"  bailable,  served  with  process)  by  the  name  of  E  F,  being  in 
*^  the  custody,"  &c.  And  in  the  court  of  C.  P.  the  declara- 
tion runs,  "  C  D,  arrested  by  the  name  of  E  F,  was  attached 
"  to  answer  ^  .S  of  a  plea,"  &c.  and  in  each  court  in  all  sub- 
sequent parts  of  the  declaration,  the  real  name  only  is  to  be  in* 
serted.  The  words  arrested  or  served  ivith process  appear  to  be 
preferable  to  the  word  sued.{/)  If  the  plaintiff's  name  be 
mistaken  in  the  process,  the  mistake  may  be  aided  in  like  man- 
ner.(,§■)  It  is  not  necessary  in  any  case  to  state  in  the  declara" 
tion  the  addition  of  the  defendant,  either  of  place  or  degree, 
for  the  statute  of  additions  does  not  extend  to  declariitions.^/i) 

In  the  King's  Bench  in  actions  by  bill.,  against  a  person  not 
privileged,  whether  he  be  in  the  actual  or  su/i/iosed  custody  of 
the   marshal,  the   declaration  (except  in  Middlesex  when  the 
•allegation,  as  to  the  supposed  custody,  is  unnecessary ;(f)  be-         ^   287 
gins   by   stating — "  to  wit,    A  B  complains  of  C  Z),  being  in 


{(I)  1  Sauml.  318,  n.  3.  Ill,  112.     C         (/)  Ante,  251.      1  B  2t  P.  40.     S 

T.  R.  130.  Anslr.  935. 

(e)    Ante,  250.      3  East,  l6r.  aec.         (/i)    3  B.  &  P.   395.      Com.   Dig. 

3T.  R.  611.  co«r.      Ti.l(i,  f>8:      1  R,  Pleader,  C.  9.      2  E<;p    Rep.    727 -• 

k  P.  105.  647,  648.  Ante,  247. 

(/)  I  B  8;  P.  647.  (i)  Dyer,  11«  ii 


287  OF  THE  DECLARATION. 

11.  lis  parts.  "  the  custody  of  the  marshal  of  the  marshulsca  of  our  loi'd  ih^ 
rinntiy,  Uie  u  ^i^p-  before  the  kine  himself,  of  a  nlfea  of  trespass  on  the 
■""■■Jit,  "  case,   8cc.  (or  au  thr  form  of  nclioii  nun/  be :)  For  that  where- 

"  as,"  £cc.(y)  and  a  biil  a;^ainst  an  actual  prisoner  in  the  cus- 
tody of  the  marshal,  filed  in  vacation  as  of  the  preceding  term, 
cont.iins  a  sjjccial  memorandum. (A-)  It  was  enacted  by  the  4 
and  5  Jl'illiatn  and  Mary,  c.  21.  s.  3.  that  "  in  all  declarations 
"  as^aiiist  a  jirhsoncr  detained  in  prison  by  virtue  of  any  writ 
"  or  process  to  I^e  issued  out  of  the  Cuiirt  of  Kbig*s  Bench,  it 
"  shall  be  alleged  in  cuniudy  of  ivhat  shcrijf,  bailiff,  or  steward 
"  of  any  franchise,  such  prisoner  shall  be  at  the  time  of  such 
"  declaration,  by  virtue  of  tlic  process  of  the  said  court, 
"  at  the  suit  of  the  plaintiffs;  which  allegation  shall  be  as 
"  good  and  effectual  as  if  such  prisoner  were  in  the  custody 
"  of  the  marshal."  This  statute  does  not  extend  to  proceed- 
ings by  origi?ial,  or  in  the  Common  Pleas,  or  Exchequer,  and, 
therefore,  the  above  allegation  is  only  necessary  when  the  plain- 
tiff proceeds  upon  a  bill  of  Middlesex.)  or  latitat,  or  by  attach- 
ment of  privilege  ;  and  if  the  cause  of  action  be  not  biiilable, 
the  same  plainiiff,  or  a  third  person,  may  in  K.  B.  proceed 
against  tiie  prisoner  as  if  he  were  at  large.(/)  In  cases  within 
*  288  ^"^^^  '"'''^'  ^^  '■^''^   declarulion  omit  *lhe   requisites,  the  defendant 

may  be  discharged  out  of  custody,  or  may  demur  generally. (?/;) 
In  the  King's  Bench  by  original,  the  commencement  of  the 
declaration,  with  the  exception  of  the  name  of  the  court  at  the 
top,  is  in  general  similar  to  that  in  the  Conunon  Picas  against 
persons  not  priviieued  ;  and  which  in  aa&umjisit,  case,  and 
trover,  runs  as  follows  : — ''  to  wit,  C  D  was  attached  to  answer 
"  ^  jB  of  a  plea  of  trespass  on  the  case.  Sec.  ror  as  the  form  of 
*'  action  may  be  ;)  and  thereupon  the  said  J  B,  by  £  l\  his  at- 
<'  lorney,  complains   for  tliat   whereas,"  Scc.i,«)     The  defend- 


(.y)  3  B.  k  P.  309.      Com.  D;-  lit.  Tiikl's  Prnc.   3il  edit.  .311.     1  T.  R 

piciidcr,  C.  S.  .See  tlic  foj-ni,  ShfCt  of  VyZ.     See  llie  form,  Sheet   of  funm, 

forms.  and  post,  vol.  2.  2. 

{k)    Ante,  2^2.      8  T.  R.  043.      2  (w)  1  Wils.  U'J.  SLd.Raj-m.  1.362. 

Saund.  1.  u.  1.      See  the  I'oriu,  Sheet  Com.   Dig.    tit.   Pleader,    C.  8.      See 

of  forms.  vol.  2.  2. 

•    (I)     imp    K.  P..  fits.    GUi   edit.—  (?()  1  Suuiid.  318.     2Snuud.  1.  n- 1- 


OF  THE  DECLARATION",  28B 

unl'b  luldilion   of  abode  or  .degree,  ought  not  to  be  inserted, (o)  Jl.  Its  parts. 
uiid  the  st:itcmcnt  thut  the  nlaiiitiiV  complains  by  more  than  one  T'"i-'ily,  the 
iittoriicy,  would  be  improper.(/2)     And  in  the  Common  Pleus,   mtui. 
or  by  original  in  K.  B.  it  would  be  incorrect  to  begin  the   de- 
claration wiih  a  (jucrltury  as  in  the  King's  Bench  by  bil].(</) 

With  respect  to  the  first  piirt  of  this  form,  it  is  observable 
thut  in  actions  of  «.?s7/M2/2«7,  case.,  trespass^  ejectment^  Sec.  where 
the  original  was  an  attuchmcnt^  the  commencement  of  the  de- 
claration should  state,  that  the  defendant  was  attached  ;  and  in 
actions  of  account,  covenant,  debt,  deiuiue,  annuity,  and  re- 
plevin, where  the  original  is  a  aunnnons-,  the  declaration  should 
state,  that  the  defendant  was  sumvioned  to  answer.(r)  But  for- 
merly when  the  declaration  stated  that  the  defendant  was  .iu7n- 
moned^  instead  of  attached,  or  -vice  versa,  the  defendant  could 
not  demur  without  craving  *oyer  of  the  original,  and  setting  it  *   289 

forth  in  order  to  shew  that  it  did  not  warrant  the  declaration  ;{ii) 
and  as  the  defendant  cannot  now  have  oyer  of  the  writ,  this 
technical  objection  is  no  longer  available. C^)  And  in  general 
the  recital,  or  reference  to  the  writ,  in  the  commencenient  of 
the  declaration,  is  not  considered  as  any  part  of  the  declaration, 
and  consequently  a  mistake  therein  is  no  groiuid  of  demur- 
rer, (k) 

Anciently  it  \vas  the  practice  in  all  actions  founded  on  an 
original  writ,  to  repeat  the  whole  writ  in  the  commencement 
of  the  declaration  ;  and  it  is  said  that  when  the  pleadings  were 
ore  (enia;  the  writ  being  returned,  and  the  parties  having  ap- 
peared, the  counter  read  the  writ  to  the  court,  and  then  men- 
tioned the  time,  place,  and  circumstances,  and  the  particular 
damage  accrued  to  the  plaintiff;  and  if  a  material  variance  ap- 
peared between  the  writ  and  declaration,  the  defendant  might 
have  taken  advantage  of  it,  either  by  motion  in  arrest  of  judg- 
ment, writ  of  error,  plea  in  abatement,  or  demurrer. (xO     But 


(o)  Ante,  24r.  2Sr,.  n.  Ii.  (t)    1  Rr,un«l.  .SIS.  a.     Doug.  2'2S.— 

(/>)   4  East,  195.    Tidd,  ;>90,  391.  1  II.  &  P.  64r.. 
*l<-''l't.  (ii)   2BI.  Ucj).   S48.     Ld.  Raym 

(7)  Com.  Di<^.  tit.  Plo.ider,  C.  11.  003.     1  fl.  IJI.  •2M\ 

(r)    Com.   1%  tit.  Pleader,  C.  12.         (rO  1  B.  k  P.  36r.      Gilb.  C  P.  4r. 

(»)    I    Saund.  318.      I  H.  IJl.  250.  2  Wils    .^94.      1  Sniind.  .318.   «.   3  — 

L<1.  Rayra  903.  Com.  Dij;.  Pleader,  C  12. 


289  <^->F  THE  DECLARATION. 

II.  Ita  parts,  this  praclicc  was  altered  in  some  actions  by  a  rule  of  the  court 
Thirdly,  the    of  C.  P.  A.  D.  1 654,  by  which  it  was  ordered  that  in  future,  de- 

comnicato- 

meut.  clarations  in  actions  on  the  case,  and  on  general  statutes,  other 

than  debt,  should  not  repeat  the  original  writ,  but  only  the  na- 
ture of  the  action,  as  that  the  defendant  was  attached  to  answer 
the  plaintiff  in  a  plea  of  trespass  on  the  case,  or  in  a  plea  of 

^  290  trespass  and  contempt  against  *thc  form  of  the  statute. (f)  And 
though  it  is  stiil  the  practice  in  a  declaration  in  trespass  vi  et 
armis  in  the  Common  Pleas,  to  set  forth  the  supposed  writ,(w) 
it  would  probably  now  be  deemed  sufficient  merely  to  state, 
that  the  defendant  was  attached  to  answer  the  plaintiff  "  in  a 
"  plea  of  trespass ;"  at  least  this  was  held  sufficient  on  a  gene- 
ral demurrer,  as  long  ago  as  the  2d  of  William  and  Mary  ;{x') 
and  now  it  would  probably  be  held  good  on  special  demurrer, 
for  this  short  recital  is  intended  only  as  an  intimation  to  the 
court  of  the  nature  of  the  action. (i/) 

When  it  may  be  doubtful  from  the  other  parts  of  the  de- 
claration, what  was  the  intended  form  of  action,  the  statement 
in  the  memorandum  may  be  decisive  ;(2)  and  when  in  trespass, 
the  supposed  writ  is  recited,  it  is  considered  as  part  of  the  de- 
claration, so  that  if  it  contain  the  words  vi  et  armis,  it  will  aid 
the  omission  in  the  count  part.(^a)  The  omission  in  the  Com- 
mon Pleas  of  the  words,  "  and  thereupon  the  said  A  B,  by 
^'  E  F,  his  attorney,  complains,"  £cc.  though  untechnical,  is  not 
demurrable. (({i)  'Where  one  of  several  defendants  has  been 
outlawed  upon  an  original  writ  in  either  of  the  courts,  the  de- 
claration should  in  the  commencement  state  the  outlawry  in  the 
particular  suit.(c)     And  where  one  of  several  plaintiffs  or  de- 

"*  291  fendants  dies  after  the  issuing  of  *the  writ,  and  before  decla- 
ration, the  commencement  should  suggest  such  death. (<i) 


(^•)    ISaiind.   318.    n.  3.      2  Wu-=.  (z)    6T.  R^130. 

105.     2  Saimd.  570.  II.  t).      Com.  Dit;.  (u)    Lutw.    1509.      Com.  Dig.  tit. 

Action  on  tiie  Case,  C.  2.      1  B.  h.  \\  Pleader,  C.  12.     2  .Stra.  1023. 

36r.  {b)  1  B.  &  P.  306. 

{-.v)    See  the  forms,  po.st,  vol.    2.  (c)  3  East,  144.      I   Wils.  78.     1 

309,  370.  East,  133.    See  the  form,  vol.  2.  p.  3. 

{x)  Carth.  108.  (</)    8  and  9  Wm.  III.  c.  11.  s.  T. 

{ii)   1  Saui.d.  318.  n.  3.    Com.  Dig.  1  Burr.  cdo.     See  the  Sheet  of  form' 
Ht  IJiender,  C.  9.  11,  12. 


OF  THE  DECLARATION.  291 

In  the  Exchequer,  rtie  commencement,  after   stating  the  //.  Its  partu. 
title  of  the  court  and  term,  runs  thus  : — "-  to  wit,  A  /?,  a  debt-  Thirdly,  the 
«'  or  of  our  Lord  the  King,  cometh  before  the  Barons  of  his  i^tnt 
"  Majesty's  Exchequer,  on the day 

nof {the  return  day  of  the  firocess)  in  this  same 

"  term,  by  E  F,  his  attorney,  and  complains  by  bill  agains*: 
"  C  Di  present  here  in  court  the  same  day,  of  a  plea  of  trespass: 
"  on  the  case,  £cc.     For  that  whereas,"  Ss;c. 

In  suits  by  infants,  or  by  or  against  assignees,  executors,  al* 
tornies,  Sec.  the  commencement  varies  from  the  above  forms. 
Infants  are  stated  to  sue  by  guardian,  ov  fn'ochcin  ami.{e)  The 
representative  character  of  assignees  and  executors,  should  be 
stated  in  the  commencement,  tliough  it  will  suffice  if  it  appeav 
in  the  other  parts  of  the  declaration  ;{/)  and  in  actions  of  debt 
by  or  against  executors  or  administrators,  in  that  character: 
the  words  "  onves  to"  must  be  omitted  in  the  commence- 
ment ;(§•)  but  assignees  of  a  bankrupt  may  sue  in  the  debet -dnd 
detinet.Qi)  An  executor  dc  son  tort  is  stated  to  be  executor  of 
the  last  will  and  testament  of  the  deceased,  the  same  as  against 
u  rightful  executor. (0  In  actions  by  or  against  attornies,  peers, 
and  members  of  parliament,  their  privilege  as  such  is  stated 
in  the  introduction. (y)  *The  various  forms  are  so  numerous,  *^  21ii2 
that  I  have  here  only  mentioned  those  which  most  frequently 
occur  in  practice. (-t) 

The  statement  of  the   cause  of  action,  in  which  all  the  re-  I'^unhly,  tht 

....  .  cause    of    ac- 

qvusites  of  certainty,  which  we  have  already  considered,  must  tion. 

be  observed,  necessarily  varies,  according  to  the  circumstances 

of  each   particular  case,  and  the  form  of  action,  whether   in 

assumpsit.)  debt,  covenant,  detinue,  case,  trover,    replevin,    or 

trespass,  the  nature  and  general  applicability  of  which  actions 

have  already  been  considered. 

In  assu7n/isit,  the  statement  of  the  cause  of  action  is  either  MnAssunif 

sit. 
8/iecial  or  gejieral.     The   forms  of  such  special  counts  \n  as- 


{e)   2  Saund.  117.  f.  n.  1.     See  the  (/i)  2  T.  R.  46. 

fiirin.  Sheet  of  forms.  (/)   1  Sauiul.  265. 

(/)    1  Sauiifl.  Ill,  112.  n.  2.  ( /)   2  Saund.  1.  n.  1.      5  T.  R.  52.1. 

(5")    Com.  Dig.  tit.    Pleader,  2.  D.  3H.&P.  7.     See  the  Sheet  of  fonuK. 

1,  2.     W.  8.     1  Sauiul  I.   112.    n.   I.  (A)   See  the   various  forms  ii^^hr 

3  East,  2,  Shrct  offinns. 


^92  OF  THE  DECLARATION. 

II.  Its  parts,  sumpait,  as  most  fi'cquently  occur  in  practice,  arc  given  in  llie 

Fourthlv,  the  second  volume.     We  will  first  consider  the   rules  to  be   ob- 
cause    oi    ac- 
tion, served  in  the  structure  of  such  special  counts  ;  in   which  six 

points  are  principally  to  be  attended  to,  viz.  1st.  The  induce- 
ment. 2dly.  The  consideration  of  the  contract.  3dly.  The 
contract  itself.  4thly.  The  necessary  averments,  othly.  The 
breach  ;  and,  6thly.  The  damages. 

Imliiccment.  An  inducement^  in  an  action  of  assuvi/isit.,  is  in  the  nature  of 
a  preamble,  stating  the  circumstances  luider  which  the  contract 
was  made.  A  formal  inducement  does  not  appear  to  be  in  any 
case  necessary  in  pleading,  it  would  be  sufficient  if  the  subject 
matter  of  the  inducement  \vere  alleged  in  any  other  part  of  the 
declaration  ;  but  it  is  useful  in  coniposiiion,  in  order  to  avoid, 
in   the  description  of  the   consideration,  or  of  the  contract,  a 

*  293  variety  of  facts,  the  statement  of  which  in  one  *continued  sen- 
tcv.ce  of  great  length,  might  be  scarcely  intelligible.  Thus  in 
an  action  on  a  wager  on  a  liorse-race,  it  is  usual  to  begin  the 
declaration  with  an  inducement  of  the  expected  race. (/)  So  in 
assumjisit  upon  an  award,  the  existing  ditTerences  between  the 
parties  are  concisely  stated  ;(/??•)  and  on  a  contract  to  pay  money 
upon  consideration  of  forbearance,  the  declaration  begins  by 
stating-  the  debt  forborne,  and  the  proceedings  that  were  stay- 
ed.(w)  But  where  the  mere  statement  of  the  consideration  and 
promise  will  be  sufficiently  intelligible,  without  any  prefatory 
allegation,  they  are  to  be  set  forth  without  any  inducement,  as 
in  declarations  ujjou  bills  of  exchange,  &c.  which  should  pro- 
ceed at  once  to  state  the  consideration  or  contract,  without  any 
preamble  of  the  custom  of  merchant-;,  which  ought  not  to  be' 
set  forth. (o) 

It  is  said  that  as  the  office  of  an  inducement  is  explanatory, 
it  does  not  recjuire  exact  certainty  ;(/2)  and  where  an  agree- 
ment with  a  tiiird  person,  is  stated  only  as  inducement  to  the 
defendant's  promise,  which  is  the  principal  cause  of  the  action, 


(1)  Post,  vo].  2.  7a.  respective     cliarnrters     arc      usually 

{m)  Id.  79.  stated  by  wav  of  inducement. 
(?;)  Id.  S-210  84.    So  in   a:i  MClion         (o)  .Ante,  219. 

against  a  uhariinger,  id.  111.    A  car-         (y»)  Tidd's  Vv,\e.  ;5d  edit.  381.  cKc:-. 

riei^id.  117.    A  coacli-owner,  id.  1 19.  Com.  iJig.  i'lcadcr,  C.  31. 

Or  a  captain  of  a  ship,  id.  12}.  ihc'ii 


OF  THE  DECLARATION.  -  293 

it  is  in  general  sufficient  to  state  such  agreement  without  cer-  //.  Its  parts. 
tainty  of  name,  ph\ce,  or  person  ;(</)  and  this  rule    certainly   ^*|"'''^''|^.'  ^Jj.^ 
obtains  in  the  statement  of  matter,  which   constitutes  an  exe-  liou. 
cuted  or  past  consideration. ('")     *Thus  in  declaring  upon  a  ^-^^ 

promise  to  pay  money  in  consideration  of  the  forbearance  of  a 
preceding  debt,  though  some  cause  of  action  must  be  alleged, 
it  is  not  necessary  to  state  the  particular  cause  or  subject  mat- 
ter of  the  dci)t,  or  the  time  when,  or  place  where  it  was  con- 
tracted ;(r)  and  in  an  action  for  negligence,  against  an  attorney 
who  has  been  employed  to  sue  another,  it  is  not  necessary  or 
advisable  to  stale  in  an  inducement,  that  such  other  person  was 
indebted. (s)  In  general,  every  allegation  in  an  inducement, 
which  is  material,  and  not  impertinent  and  foreign  to  the  cause, 
and  which  consequently  cannot  be  rejected  as  surpiusage,  must 
be  proved  as  alleged,  and  consequently  great  attention  to  the 
facts  is  necessary  in  framing  the  inducement,  and  care  must  be 
taken  not  to  insert  any  unnecessary  allegation. (0  Thus  in  the 
case  just  mentioned  against  an  attorney,  where  the  declaration 
stated  that  E  F  was  indebted  to  the  plaintiff,  and  that  the  plain- 
tiff employed  the  defendant  to  sue  her,  it  being  proved  that 
E  F  was  a  feme  covert  at  the  time  the  supposed  debt  accrued, 
and  consequently  not  in  point  of  law  indebted,  the  plaintiff  was 
nonsuited,  though  the  declaration  might  have  been  sufficient 
without  stating  that  the  third  person  was  indebted. (u)  Where, 
however,  the  matter  unnecessarily  stated  in  the  inducement  is 
wholly  impertinent,  and  might  be  struck  out  as  surplusage, 
there  are  some  cases  in  which  a  failure  *in  proof  of  such  state-  *  295 
ment  would  not  be  material. (xO 

In  declaring  upon  a  contract  not  under  seal,  it  is  uniformly  Consideration 
necessary  to  state  the  consideration  upon  which  it  was  founded. (w) 


{q)  Yclv.  17.  {u)  Peake,  C.  N.  P.  119. 

(r)   I(i.  ibid.      Cro.  Eliz.    715.     10  \v)   2  Bl.   Rep.   &40.     Doug.   007, 

Co.  59.  b.     Com.  Dig.  Pleader,  C.  31.  5  T.  R.  498.     3  T.  R   CiG. 

4.r     E.  to.  IS.  (iu)    Com.  Dig.    Action,  Assump. 

(r)  Hob.  18.     Post,  vol.  2.  82.  n.  y.  sit,  H.  3.      7  T.  R.  348  to  351.     5  T- 

(s)  Peakc,  C.  N.  P.  119.  R.  l43.      0  East,  .-ifiS.    7  East,  9.     1 

(K)   Ante,    '231,232.      Doug.  007.  S^uad.  211.  n.  fi.  Bull.  Iv  P.  140,  Ur. 

Pcakc,  C.  X.  P.  119.      5  T.  R.  498. 

3T.  R.  046.    3B.kP.-l6:3. 

Vor,.  f.                                  r  27  1 


295  OF  THE  DECLARATION. 

//.  Its  parts-  Upon  bills  of  exchange  and  promissory  notes,  and  some  other 

Fourthly,  tlie  Jetjal  liabililies,  the  mere  slutcment  of  the.  liability  which  con- 
cause  of    ac-       .'  ... 
tisn                 stuutcs  the  consideration,  is  sufficient ;  but   in  other  cases  of 

simple  contnicls,  the  consideration  should  be  formally  and  ex- 
pressly stated,  whatever  may  be  the  form  of  action. (x)  The 
consideration,  as  stated,  must  always  correspond  with  the  facts 
of  the  case,  and  be  sufficient  in  law  to  support  the  promise  as 
laid,  and  be  co-extensive  therewith  ;(//)  and,  therefore,  a  de- 
claration against  the  husband  alone,  on  his  mere  promise,  with- 
out any  new  consideration,  to  pay  the  debt  of  his  wife  contract- 
ed by  her  before  the  marriage,  was,  upon  motion  in  arrest  of 
judgment,  held  insufficient,  because,  to  support  such  action 
against  the  husband  alone,  some  new  consideration,  such  as 
forbearance,  should  have  been  alleged. (z)  The  whole  of  the 
consideration  of  the  defendant's  contract  must  also  in  general 
be  stated,  and  if  any  purt  of  an  entire  consideration,  or  of  a 
consideration  consisting  of  several  things,  be  omitted,  the 
plaintiff  will  fail  upon  the  trial  on  the  ground  of  variance. (a) 
*   296  It  is,  however,  sufficient,  in  general,  *to  state  so  much  of  any 

contract,  consisting  of  several  distinct  parts  and  collateral  prg- 
visions,  as  contains  the  entire  consideration  for  the  act,  and  the 
entire  act  which  is  to  be  done  in  virtue  of  such  consideration  ;  and 
the  rest  of  the  contract,  which  only  respects  the  liquidation  of 
damages,  after  a  right  to  them  has  accrued  i)y  a  breach  of  the 
contract,  is  matter  proper  to  be  given  in  evidence  to  the  jury 
in  reduction  of  damages,  but  not  necessary  to  be  shewn  to  the 
court  in  the  first  instance,  on  the  face  of  the  record. (A)  Where 
a  part  of  a  consideration,  or  one  of  several  considerations,  is 
frivolous  and  void,  it  is  sufficient  to  notice  only  the  valid  con- 
sideration, though  if  stated,  it  will  not  vitiate  the  declaration  ;(c) 
but  no  mode  of  pleatling  can  enable  the  plaintiff  to  recover, 
where  part  of  an  executory  consideration  was  illegal. (c/) 


(a-)  2  B.  &  P.  79.     LuUv.  2.^7.  (c)  Cro.  Eliz.  140.  848.      1  Sid.  38 

(«/)    4  E.nst,  4C4,  4C5.      7  T.   R.  Cro.    Jac.  128.     l\ake,  C  N*.  P.  62. 

34S.     Ci-o.  Eliz.  79.  2  Burr.  1082.     Bull.  N.  P,  147. 

(r)   7  T.  H.  348.  {d)     Cro.  Eliz.  200.     4  Leon.  5 

00    6East,  ses.       8East,  7.  9.—  Sir  T.  Joues,  24.      1  Saund.  C6.  n.  1- 

Cro.  Eliz.  79.  Bull.  N.  P.  l47.  1  Sid.  88.     7  T.  II.  121. 
(6)  Poi-  L.l.  EUcnborougli,  6  East, 

570.     6  Eust,  7, 


OF  THE  DECLARAiiOX.  2'06 

The  statement  of  the   various   points   relating  to  the  huffi-  //.   It::  parls- 

riencv  of  considerations,  would  be  foreien  to  a  treatise  of  this  fo»i!i>»'y.  i'>« 
^ "'     /  ...  cuiise    oi  de- 

nature.    So  far  as  rei^ards  pleadhig,  considerations  are,  ist.  tiun. 

Executed,  or  something  done,  or  past,  at  the  lime  of  the 
making  of  the  defendant's  contract ;  2dly.  Executory,  or  so:iie- 
thing  thereafter  to  be  done,  or  forborne  ;  odly.  Concurrent^  as 
in  the  case  of  mutual  promises ;  and,  4thly.  Coiitimdn,^,  as  in 
the  instance  of  contracts  between  landlord  and  tenant. 

In  pleading  an  executed  consideration,  less  certainty,  in 
general,  is  required  in  the  statement  of  "the  subject  matter  of  ^  ^^7 
it,  than  in  describing  an  executory  con5.ideration  ;  but  it  should 
be  shewn,  thatsuch  executed  consideration  arose  at  the  defend- 
ant's request,  though  s'ich  request  may  in  some  cases  be  im- 
plied in  evidence. (r) 

Tiie  consideration,  when  executory,  must  be  stated  Mith 
more  certainty  ;  end,  therefore,  in  an  action  for  v/ages.  Sec.  in 
consideration  that  the  plaintift"  would  proceed  on  a  certain  voy- 
age, the  particular  voyage  must  be  stated.(./')  The  dislinclion 
as  to  the  diilerent  degrees  of  certainty  required  in  the  slattment 
of  an  executed,  or  executory  consideration,  probal>ly  proceeds 
on  the  ground  that  in  the  latter  case  the  performance  of  the 
consideration  on  the  part  of  the  plaintift',  in  general  constitutes 
a  condition  precedent,  upon  which  the  plaintift" 's  right  of  ac- 
tion depends.(5-) 

A  concurrent  consideration  occurs  in  the  case  of  mutual  pro- 
mises, which  are  a  third  species  of  considerations,  partaking 
of  the  nature  of  the  preceding  two.  The  plaintiff's  promise 
is  executed,  but  the  thing  which  he  has  engaged  to  perform  is 
executory,  as  in  promises  to  marry,  to  submit  to  an  award,  ou 
.  agers,  S:c.  The  promises  of  each  party  must  in  general  be 
concurrent  or  ol)ligatory  on  both  at  the  same  time,  to  render 
the  promise  of  either  binding,  and  must  be  so  stated  in  plead- 
ing.(/;)     And  in  these  cases  it  is  not  *al\vays  necessary  to  aver         -j^   908 


{e)     1  Saun<1.  204.  n.  I.       2  Su-a.  (?•)    Willes,  isr.  a.     1  Saund.  320. 

933.     3  Burr.  1  fir  I.      Bac.   Abr.   As-  Tidd,  381  to  SSfi.  3il  edit. 

sumpKit,  F.     3  R.  k  V.  '2fl4.  n.  4.  (A)    3  T.  U.    US.   6.i3.     Bl.   Rc^j 

(/)  2  B.  k  P.  116.  120.265.    Yflv.  700.     Peakc,    C.  N.   R   228.     Hob 

110.      Com.  Dig.  Action,  .Vssunipsif,  146.    Salk.  U2.    5  East,  16. 
1,1.  3.     Buc.  Abr.  Assumpsit,  F. 


298  OF  THE   DECLARATION. 

11.  IfD  parts,  performance  of  the  thing  stipulated  to  be  done,  the  plaintift"'s 

Fourthly,  il.e  ai^rccment  to  perform  beins:  a  sufticient  consideration//)  unless 

causa    ot    au-  ~ 

lion.  the  /le-r/oiniancp  oi  one  MCt  be  the  consideration  of   the  per- 

formance of  the  other,  in  which  case  an  averment  of  fier/'orm- 
ance,  or  readiness  to  perform>  is  in  general  necessary,  even  in 
the  case  of  mutual  promises,(y)  as  upon  mutual  promises  to 
marry,  and  bargains  to  sell  and  accept  goods. (^) 

In  the  case  of  a  continuing'  consideration,  the  declaration 
generally  states,  that  in  consideration  that  the  defendant  had 
become  and  was  tenant  to  the  plaintiff  of  certain  land,  &c.  he 
undertook,  during  the  continuance  of  the  tenancy,  to  repair, 
Ecc.  and  the  declaration  then  avers  the  continuance  of  the 
tenancy,  and  the  breach.(/) 

Where  no  consideration,  or  an  insuflicient  or  illegal  consider- 
ation, is  stated,  the  defendant  may  either  demur,  or  move  in 
arrest  of  judgment,  or  support  a  writ  of  error.(m)  But  after 
verdict,  a  defective,  or  informal,  or  uncertain  statement,  of  a 
consideration,  not  apparently  illegal,  may  be  aided  ;(/»)  and 
where  the  consideration  is  untruly  stated,  or  a  part  thereof  is 
omitted,  the  objection  can  only  be  taken  on  the  trial  as  a  groimd 
of  nonsuit. (o) 

After  stating  the  consideration,  the  contract  itself  is  usually 

*  299  alleged,  and  this  must  be  set  *forth  in  some  part  of  the  de- 
claration, either  in  the  words  in  Avhich  it  was  made,  or  accord- 
ing to  the  legal  effect^  and  if  there  be  a  variance,  it  will  be 
fatal .(;^)  It  has  been  decided,  that  where  the  contract  is  found- 
ed upon  a  legal  liability,  and  implied,  it  is  sufficient  to  state 
such  liability,  without  alleging  formally  that  the  defendant 
promised,  as  in  assumjidt  on  a  bill  of  exchange  ;(<7)  but  it  is 
more  correct  in  pleading,  in  all  cases  to  state  that  the  defend- 
ant, siijier  se  asaumjisit,  or  words  to  that  effect ;  for  the  law 
does  not  create  a  promise  in  any  case  in  pleading,  though  it 


(0  1  Wils.  S8.    5T.  R.  409.    1  Ld.  (m)  4  East,  455.     7T.  R.  348. 

Raym.  664.     1  Salk.  171.  («)  4  East,  464.     2  B.  k  P. '265. 

0)  1  Salk.  112.  171.     1L(1.  Raym.  (o)  Cro.  Eliz.  70.     8  East,  564.     7 

665.     6  T.  R.  570.     7  T.  R.  1'25.  East,  7.     3  T.  R.  67.  ri.  a. 

{k)  1  East,  203.  {p)  1  T.  R.  240.      Doug.  669.  138. 

(Z)    5T.  R.  373.     4  East,  154.—  5  T.  R.  4D8.    4  T.  R.  560. 

Leon.   102.     Cro.   Eliz.   94.    715.     2  (<;/)    5  T.  R.    145.     1  Salk.   128.— 

Leon.  224.     2  Bl.  Rep.  842.  Carlh.  509. 


OF  THE  DECLARATION.  2\jd 

ttiay  afford  sufficient  evidence  to  jusiify  a  jury  in  ilnding  a  pro-  //.  Jit  }H'ri» 

mise  ir)     The  contract  itself  sliould  not  only  be  stated,  but  it  i'""'^'"^''')'.  t)ie 
lAiiov,.!.  /  /  cause    ot    ac- 

should  expressly  be  alleged,  by  and  to  whom  it  was  made ;(«)  tion. 
though  the  omission  may  in  some  cases  be  aided,  especially 
after  verdict ;  and  the  promise  will  be  intended  to  have  been 
made  to  the  parly  from  whom  the  consideration  proceeded. (0 
On  a  promise  to  ^,  to  pay  B  a  sum  of  money,  if  the  action  be 
at  the  suit  of  /^,  it  is  said  that  the  promise  should  be  laid  as 
having  been  made  to  B.{u)  In  stating  the  consideration  we 
have  seen  that  it  is  necessary  to  set  forth  the  whole  ;(x')  but  in 
stating  the  contract  itself,  though  it  might  be  improper  to  say 
that  the  defendant  inter  alia  /iro?ni.^il,{-7v)  it  is  sufficient  merely 
to  state  the  parts  of  the  promise,  *the  breach  of  which  is  com-  r^OO 

plained  of;  and  it  is  not  necessary  to  state  in  the  declaration 
other  parts,  not  quulifyiug  or  varying  in  any  respect,  those,  the 
breach  of  which  is  complained  of.(x)  As  where  the  plainlifi" 
declared  that  in  consideration  of  his  redelivery  to  the  defend- 
ant of  an  unsound  horse,  wiiich  he  had  before  then  sold  to  the 
plaintiff,  the  defendant  promised  to  deliver  to  him  another 
horse  which  should  be  worth  80/.  and  be  a  young  horse,  and 
then  alleged  a  breach  in  both  these  respects,  the  declaration 
was  held  sufficient,  though  the  proof  was  not  only  of  a  promise 
that  the  second  horse  should  be  worth  80/.  and  bo  a  young 
horse,  but  also  of  a  warranty  that  it  was  sound,  and  had  never 
been  in  harness. (z/) 

The  judgment  of  Lord  £llenboroug/i,  in  the  case  of  Clarke 
\.  Grey,(.z)  elucidates  this  doctrine.     "  It  is  no  more  necessary  ^* 

"  to  state  every  part  of  an  agreement,  not  under  seal,  each 
"  part  making  a  distinct  contract,  than  it  is  of  an  agreement 
"  under  seal.  It  is  sufficient  in  either  case  to  state  so  much  of 
"  each  as  constitutes  that  contract,  the  breach  of  which  is 
"  complained  of,  and  which  prescribes  the  duty  to  be  perform- 


(r)   Bac.  Alir.  Assumpsit,  F.  Com.  (ii)    1  B.  k  P.  102. 

Dig.  A  ;;iiOii,  A-sMiuipsit,  H.  .3.     2  H.  (v)  Ante,  295,  290. 

B1.1.  5fi3.  n.  a.     1  Ld.  Kaym.  5o8.  (-m)   Alcyn,  .5. 

(«)   Ar.tr-,  257.  n.  y.  (x)  8  East,  7.     6  East,  .S67 

(/)  Com.   Dig.   Action  of  Assnmp-  (r)  8  East,  7. 

sit,  A.  5.     Lutw.238.     Ante,  257.  n.  (r)  0  East,  56'. 

5,201.  II.  V.     2B.&P.  205. 


300  OF  THE  DECLARATION, 

II.  Its  farts.  ''  ed,  and   the  lime,  manner,  and  other  circumstances  of  its 

rourtlily,  the  «  performance  ;  with  tl)is  difference  onlVf  that  in  the   case   ot 

eaiise    ol     ac-  _ 

tidii.  "  an  agreement  not  under  seal,  the  consideration  must  be  sta- 

"  ted,  and  no  part  of  the  entire  consideration,  for  any  promise 

*'  contained  in  the  agreement,  can  be  omitted. "(a) 

"  It  is  sufficient  to  state  in  the  declaration  so  much  of  any 

"*  301  "  contract,  consisting  of  several  distinct  *parts  and  collateral 
"  provisions,  as  contains  the  entire  consideration  for  the  act« 
*<  and  the  entire  act  which  is  to  be  done  in  virtue  of  such  con- 
"  sideration  ;  and  the  rest  of  the  contract  which  only  respects 
"  the  liquidation  of  damages,  after  a  right  to  them  has  accrued 
"  by  a  breach  of  the  contract,  is  matter  proper  to  be  given  in 
"  evidence  to  the  jury  in  reduction  of  damages,  but  not  ncces- 
"  sary  to  be  shewn  to  the  court  in  the  fust  instance  on  the  face 
''  of  the  record.  Therefore,  ansiimji.dt  may  be  maintained  in 
"  the  common  form  of  declaring  against  a  carrier  for  the  Iosk 
"  of  goods  which  were  of  above  Si.  value,  and  were  not  in  fact 
"  paid  for  accordingly,  although  it  were  part  of  the  contract 
"  proved  by  general  notice  fixed  up  in  the  carrier's  office,  and 
"  presumed  to  be  known  and  assented  to  by  the  plaintiff,  that 
«  the  carrier  would  not  be  accountable  for  more  than  5/.  for 
"  goods,  unless  entered  as  such,  and  paid  for  accordingly. (<!») 
"  There  are  a  great  variety  of  agreements,  not  under  seal, 
'<  containing  detailed  provisions,  regulating  prices  of  labour, 
"  rates  of  hire,  times  and  manner  of  performance,  adjustment 
"  of  differences,  &c.  which  it  may  not  be  necessary  to  set 
«  forth."(f) 

So  any  proviso  or  condition  in  the  contract,  which  goes  mere- 
ly in  drfaisaricc  of  it,  needs  not  be  stated,  for  this  ought  to 
come  from  the  other  side  ;(f/)  but  if  such  proviso  or  condition 
constitute  a  condition  precedent,  or  if  there  be  any  other  mat- 

*  JQQ  ter  which  qualifies  the  contract,  or  *goes  in  discharge  of  the 
liability  of  the  defendant,  it  must  be  stated.(e) 


(«)  And  see  S  East,  7.     Doug.  676.  ((0  1  Saund.  2.34.  n.  2.       1  Lev.  88. 

1  Saund.  233.  n.  2.  1  T.  R.  645.     Ante. 

(A)   6  East,  564.  (e)  1  T.  K.  645.       6  East,  570.     & 

(c)  Per  Ld.  Ellenborough.  6  East,  East,  8. 
5€8. 


OF  THE  DECLARATION.  302 

A  contract  in  the  alternative  must  not  be  stated  as  an  abso-  U-  ^ts  parts. 
lute  contract,  though  the  option  were  in  the  party  pleading  ;(/)  ^.[|"Jg^  '^-f?  \^^ 
uud  it  may  be  advisable  where  goods  have  been  sold  on  credit  uo». 
to  be  paid  for  by  a  bill  of  exchange  to  be  accepted  by  the  ven- 
dee, to  state  such  contract  specially,  and  the  breach,  even  after 
ihe  expiration  of  the  limited  credit  ;(§•)  and  such  statement  is 
clearly  necessary,  when  the  action  is  brought  for  nv.t  accepting 
the  bill  before  the  credit  has  elapscd.(//) 

Upon  a  written  contract  it  is  usual  to  follow  tlie  words  of  the 
contract,  where  they  are  concise  and  intelligible,  and  if  the  le- 
gal effect  be  doubtful,  this  is  the  safer  course.  The  plaintiff, 
however,  is  not  bound  to  set  forth  even  the  material  parts  in 
letters  and  words.  It  will  be  sufficient  to  stale  the  substance 
and  legal  effect,  which  is  shorter,  and  not  liable  to  misrecitals 
and  literal  mistakes  ;(/)  and  as  the  courts  discountenance  any 
unnecessary  prolixity  in  pleading,  it  is  advisable  to  adopt  the 
latter  course,  where  the  recitals,  Sec.  may  be  long.  Thus  in 
declaring  in  covenant  upon  a  lease,  h.c.  it  is  in  general  advisa- 
ble not  to  set  out  the  premises /^er  ncmcn,  as  in  the  lease,  but 
to  state  "  that  the  plainiiff  demised  to  the  defendant  certain 
''  premises  particularly  mentioned  and  described  in  the  said  in- 
"  denture,  except  as  therein  is  excepted,  to  hold  the  same  for 
"  a  certain  term  *therein  mentioned,  yielding  and  paying  the  ^  2/)'^ 
"  rent  of /.  payable  on,"  &;c.  and  then  to  state  the  cove- 
nant for  payment  of  the  rent,  the  entry  of  the  defendaiit,  and 
the  breach  in  not  paying  the  rent  due  ;  or  if  the  action  be  for 
the  breach  of  any  other  covenants,  the  plaintiff,  if  he  stale  the 
rent  at  all,  which  is  unnecessary,  should  Si;y  concisely,  "  at  a 
"  certain  rent  payable  as  in  the  said  indenture  is  menlioned,'"" 
and  then  set  forth  those  covenants,  and  the  breach  of  them- 
And  where  the  plaintiff  in  covenant  in  a  mortgage  deed,  set  out 
the  premises,  which  were  numerous,  Lord  I^TumJicid  sidd,  that 
though  he  was  told  that  it  was  tl.e  usual  practice,  he  thought  it 
a  disgrace  to  the  profession  and  to  tlie  court,  and  suid  that  the 
couft  would   animadvert  upon  any  future   instance   of  putting 


(/)    2Ki,st,    2.      2B.   k    P.   119.         (/i)  KI.  ibid, 
note  a.     3  T.  U.  531.     8  East,  S.  (/)  Douj;.  f)'"i".     1  Sflund.  2*3-  n. 

{(;)  3  11.  k  P.  5S:-     4  Kaat,  XiT         2  Saijnd.  .%6.  305,  b.  n.  l."^. 


303  OF  THE  DECLARATION. 

//.  Its  parts,  parties  to  the  enormous  expense  of  setting  out  deeds  at  length, 
Fouitlily,  tlie  or  superfluous  parts  of  them//)  The  statement  of  the  con- 
tion  tract  should  in  strictness  be  positive,  and  not  by  way  of  recital, 

as  by  a  tvatatum  cxhtit  ;  but  this  will  suffice  in  a  declaration, 
though  it  would  be  insufficient  in  a  plea.(/(-)  Where  the  con- 
tract must  have  been  in  writing  under  the  statute  of  frauds, 
yet  it  is  not  necessary  in  a  declaration  to  shew  that  fact,  though 
it  is  otherwise  in  a  plea.(/)  The  contract  should  be  stated  with 
certainty,  but  an  omission  in  this  respect  may  be  aided  by  ver- 
dict.C'w) 
Variance.  From  the  preceding  observations  it  may  be  collected,  that  if 

*  304  the  consideration  or  the  contract  'proved  in  evidence,  vary 
from  that  stated  in  the  pleadings,  the  plaintiff  will  be  non- 
suited.(?^)  A  trivial  variation  in  setting  out  a  contract,  a  re- 
cord, or  any  Avritten  instrument,  is  fatal,  because  it  docs  not 
appear  that  the  contract  given  in  evidence  is  that  on  Avhich  the 
plaintiff  declares,  it  is  matter  of  descripuon.(o)  The  leading 
case  upon  the  subject  of  variances,  in  the  statement  of  con- 
tracts^ is  that  of  Brhtoio  v.  Wright  and  another,(/?)  where  in 
an  action  against  the  sheriff  for  taking  goods  under  di  Jicri  fa- 
cias.) without  leaving  a  year's  rent,  the  declaration  stated,  that 
the  person  against  whom  xhe  Jieri  facias  was  issued,  held  cer- 
tain tenements,  as  tenant   to  the  plaintiff  under   a  demise,  at 

the  yearly  rent  of /.  payable  by  four  quarterly  fiayments, 

but  on  the  trial  it  was  proved,  that  there  was  no  stijiulation  as 
to  the  time  of  the  ^layment  of  the  rent,  upon  which  the  plaintiff 
was  nonsuited.  And  Lord  Mansfield,  on  a  motion  for  a  new 
trial,  gave  judgment  to  the  following  effect :  "  It  certainly 
"  was  not  necessary  to  allege  that  part  of  the  lease  which  re- 
"  lated  to  the  time  of  payment,  in  order  to  maintain  the  action  i 


(j)  Cowp.  r)65.  727.     1  SmuikI.  233.  2  B.  k  P.  51.  119.     2  East,  4.    Doug, 

n.  2.     2Sauml.  305.  u.  13.  366.  Doug.  660.  n.   138.     5  T.  R.  428.     4  T.  U. 

667.  560.     Bull.  N.   P.  145.    Itep.  temp. 

{k)  1  Saimd,  274.  n.  1.     2  Lev.  75.  Hardn.  309. 
SKeb.  94.     G  Vin.  Abr.  461.     1  B.  k         {o)  Id.  ibid.      4T.   R.  560.     Gili.. 

P.  376.  Cases,  L.  k  E.  229. 

(/)    1  Saund.  276.  a.  n.  2.      4  East,         {p)  Doug.  665.     4  T.  R.  687.     1  T. 

4no.  R.  447.     8  East,  9.      As  to  variances, 

(ni)  2R.  &P.  265.     Ante,  261.  see  also  8  East,  1S8.   Campb.   N.   P 

(n^.     1  T.  R.    240.     Per  BuUer,  J.  195. 


OF  THE  DECLARATION.  304 

"  but  since  it  had  been  alleged,  it  was  necessar)'  to  prove  it.  ^I-  ^'^  parts. 

,  ...  ,  •      ,     ,  FourlhlV;  tlie 

"  The  distinction  is  between  that  which  may  be    rejected   as  j.,^use    ^^   y^, 

«'  surfilusage^  (which  might  have  been  struck  out  cii  motion,)   ^'°'^- 

"  and  what  cannot.     Where  the   declaration  contains   imherti- 

«'  nent  matter  foreign  to  the  cause,  and  which  the  master,  on  a 

«<  reference    to    him,    would   strike   out,  (irrelevant    covenants 

*<  *for  instance,)  that  will  be  rejected  by  the  court,  and  need  not  *    305 

''  be  proA'ed.    But  if  the  very  ground  of  the  action  be  misstated, 

"  as  where  you  undertake  to  recite  that  part  of  a  deed  on  which 

"  the  action  is  founded,  and  it  is  misrecited,  that  will  be  fatal  j 

"  for  then  the  case  declared  on  is  different  fi'om  that  which  ia 

*'  proved,  and  you  must  recover  secundum  allegata  et  probata. 

"  This  distinction  will  reconcile  all  the  cases.     If  this  doctrine 

*'  were  highly  detrimental,  and  setting  it  right  would  be  attended 

"  with  no  mischief,  as  it  is  only  a  mode  of  practice,  it  might 

"  deserve  consideration  ;  but  I  believe  it  stands  right,  and  upon 

"  the  best  fooling,  for  it  may  prevent  the   stuffing  of  declara- 

"  tions  with  unnecessary  matter,  because  of  the  danger  of  fail- 

"  ing  in  the  proof,  und  may  lead  pleaders  to  confine  themselves 

*'  to  state  the  legal  cFfect."       In    Savage  v.  Smii/t,((/)  De  Grey^ 

C.  J.  proceeded  upon  the  distinction  between  material  and  im- 

fiertinait  averments,  and  said,  that  the  former  must  be  proved, 

because  relative  to  the  point  in   question,   but  that   the   latter 

need  not ;  and  Lord  Mamjicld  approved  of  this  distinction. (r) 

Lord  Kenyon.^  in  Gwinnett  v.  Fhili/is,  .1)  said.,    "  that  there    was 

"  no  doubt  that  if  the   plaintiff  professed  to  set  out  his  title  he 

♦'  must  set  it  out  correctly. (/)     So  where  a  contract  is  to  be 

•*  stated  *in  a  declaration,  unless  it  be  truly  stated  the  plaintiff         *   (^QQ 

"  cannot  recover ;  but  it  is  now  contended,  that  in  every  case 

"  the    facts    alleged  by  the  plaintiff  must  be  strictly  proved, 

"  otherwise  he  must  be  ncnsuited  ;  but  the  rule  can  never  be 

"  carried  to  such  extent  ;  the  doctrine  in   Bristovj  v.    Wright 


(9)  2  Rl.  Rep.  no*.  title  was  impevtijtent  as  it  was  unne- 

(r)  Do(ig.  067.  cessary  to  shew    ami  title.     In  Doug. 

Cv)  3  T.  11.  f)i5.  C68.  the  editor  states  that  the  word 

(0  '2  Bl.  Rep.  1104.     2  Saund.  206.  material  in  2  P.l.  Rep.  1104.  is  a  mis- 

%.  n.  22.  n.  24.  ace.    In  2  Ul.  Rep.  842.  take  in  the  press  :ind  should  have  been 

and  I   Stra.  229,  230.  the  averment  of  immatcrialj  but  see  2  Bl.  liep.  842. 

Vol.  I.  [  28  ] 


S06  OF    rilE  DECLARATrdlsr. 

//.  If.i  partn.  **  must  be  confined  to  contractfi ;  good  sense  will  reconcile  all 
Snse'^iif  ^u-  "  ^'^^  auihoi'ities.  If  the  pUiintiff  allege  any  thing,  which  iorm* 
tioii.  "  a  constituent  {lart  of  his  title,  he   must  set  it  out  correctly." 

And    Mr.  J.   Bidlcr  observed,  "that    the   case  oi  Eristoto  v. 
<'  Wright  was  not  lai  authority  beyond  the  cases  of  contracts.,  for 
"  a  contract  is  entire  in  iis  nature,  and  must  be  proved  as  laid  ; 
*'  and  that  perhaps  the  rule   h.id  down  in   that  case  would   be 
"  found  to  extend  to  all  cases  of  records  and  written  cojitvucts.'* 
In  Pc/'pin'v.  Solomons, ji)  Mr.  J.  /duller  observed,  "thatti.e 
"  case   of    Bristoio    v.    Wright  had   been   sometimes  dcubiid, 
"  but  that  he  was  s;ill  of  opinion  that  ii  was  jightly  deci  uir.  ; 
*'  that  in  order  to  entitle  the  pLiinfiir  to  maininin  that  acti('i;  it 
"  was  necr^fnanj  for   him   to  sliew   that   he  was  the  lundlor      it 
*'  being  an  action  against  the  sherifl'for  taking  the  lessee's  g^.o'is 
•'  without  leaving  a  year's  rent  ;  and  to  shew  that  the  plaintiii  was 
"  the  landlord,  he  was  obliged  to  set  forth  a  contract  betweei.    im- 
"  self  and  the  tenant;  now  contracts  ate  in  their  nature  entire, 
«  and  in   pleadings   they  must  be  st..ted   accurately  ;    but   as 
*'  the  evidence  in  that  case  did  not  accord  with  the  contract  sta- 
?fc    Q()7         "  ^t;<^  in  t'^e  declaration,  and  which  was  the   *foundation  of  the 
*'  action,  it  was  properly  determined  that  a  judgment  of  nonsuit 
"  should  he  entered."     And  with  respect  to  what  statements 
are  necessary  to  be  proved,  the   rule  stems  to  be,  that  if  the 
whole  of  the  statement  may  be  struck  out,  without  destroying' 
the  plaintiff's  right  of  action,  it  is  not   necessary  to  prove  it; 
but  otherwise^  if  the  whole  cannot  be  struck  out,  without  getting 
rid  of  a  part  essential  to  the  cause  of  action  :  for  then,  though 
the  averment  be  more  Jiarticular  than  it  need  have  been,   the 
whole  must  be  proved,  or  the  plaintiff  cannot  recover.(T;)     It 
may  be  collected  from  the  above  authorities,  that  whenever  a 
contract  is  described,  a  variance  will  be  equally  fatal,  whatevei? 
may  be  the  form  of  action,  whether  upon  the  contract  itself,  or 
upon  some  collateral  matttr,  or  in  an  action  in  form  ejcdelicto.{w) 
If  a  contract  be  described  according  to  its  legal  effect,  it  will  in 
general  be  sufficient,  though  it  may  vary  from  the  precise  words 
of  the  contract ;    but  a  variance,  however  small,  in  setting  out 


(?/)  5  T.  \\.  496.  (w)  Doug.  067.  ^  Esp.  Rep.  3. 

(r)  2  Easi,  452.  502.    4  East,  400 
3B1.  Rep.  1104. 


OF  THE  DECLARATION.  307 

Uic  names,  kc  in  a  bill  or  note,  is  fiifal  ;  und  therefore  -where   ^^-  ^t"  /"'"'* 
a  note  yiven  by  the  numc  of  .S'/// -////f  unci  otliers,  was  described  p.|||l.g''y7  ^^^^, 
in  tiic  declarcition  as  made  by  S/iut/i^ dud  others,  the  pluintitf  tion. 
•vvas  nonsuited. (x)     And  wlieie  the  contract  stated  on  the  record 
is  even  by  it  gal  intendment  different  from   that   proved  in  evi- 
dence, the  vuriance   will   be    fatal ;  thus  where  the  declaration 
stated   a  contract  to  deliver  400  busfu-ls  of  oats,  the  *plaindfr         *    30B 
was  nonsuited  on  proof  that  tiie  bushels  were   not  lo  be   U'in- 
eheater  measure  (.r) 

Where  the  consideration  or  contract  or  other  matter  alles^cd 
is  material  and  traversable,  the  statin!^  it  under  a  nciltcct  will  not 
avoid  the  consequences  of  a  variance. (;/)  and  it  will  be  consider- 
ed as  a  sufficient  positive  statement  ;Cr)  and  on  the  other  hand 
it  has  been  decided  that  the  omission  of  a  scilicet  will  not  render 
an  immaterial  averment  material  to  be  proved  as  stated,  even  in 
a  criminal  proceeding,(a)  unless  some  positive  allegation  be 
adopted,  as  the  words  "  and  no  more. "(A) 

An  averment  signifies  a  positive  statement  of  facts  in  opposi-  Ot  averments, 
tion  to  argument  or  inference  ;(r)  and  when  the  obligation  on 
the  defendant  to  perform  his  contract  depended  on  any  event 
which  *wouldnot  otherwise  appear  from  the  declaration  to  have  ^    309 

occurred,  it  is  obvious  that  an  averment  of  such  event  is  essen- 


(.r)  4  T.  R.  611.     3  B.  k  P.  559.  consequences   of  a  vnriance.     Sec   2 

(j-)  4  T.  II.  .314.  Siumd.  21)1.  c.  n.  1.     Pe.ike's  Law    of 

ly)  GT.  U.  402.     2  B.  Sc  P.    118.  '  Evidence,  2(1  edit.  196,  19".  But  with 

1  Suuiid.  iro.  n.  2.     2  S.-^und.  291.    a.  deference,  it  is  pi-esumtd  on  the  au- 

b.  c.  2ur.  b.     1   Su-a.  233.     5   T.   R.  thority  of  the  case  in  0  T.  li.  265.  and 

71.     4  T.  U.  591.     3  T.  H.  68.  upon  the  priuciple  on  « liich  the  other 

(:)  2  Suund.  291.  a.     1  Stra.  233.  decisions  arc  founded,  and  from  the 

(a)  0  T.  \\.  265.     3  T.  R.  643.  645.  doctiine  of  venues  in   transitorv  ac- 

S-d  vid.  3  T.  M.  68.  tioiis,  ante,  269.  2S2.  and  from  llic  cir- 

(i)  3  T.  R.   CS.     2  Saund.  206.   a.  cumsUiiiecs  of  time  an<l  place  being;  in 

It  has  indeed  been  said  by  counsel   in  general   immaterial  to   be  proved  as 

argument,  and  afe  ol>itcr  dicta  in  many  stated,  even  in  an  indictment — (sec 

of  ihe  c.»ses  referred  lo  in  the  note  ((/),  4  Hawk.  7th  edit.  46, 47.    2  Hale's  P. 

supra,  and  by  some  very  accurate  el-j-  C.    179,180.     2Tnst.  318.) — that   the 

ment.iry  writers,  that  the  omission  of  omission  of  a  scilicet  will  not  render 

a  scilicet  or   videlicet  will  frequently  it  materiid  to  pro',  e  precisely  as  stated 

render  fi  material  to  prove  precisely  matter  which   is    immaterial.     As  to 

as   stUed  matter   which    would    not  the    nature    and   use  of  a  scilicet  in 

otherwise  he  material,  and  that  it  is  general,  see  5   East,  252.     2  Saund. 

therefore    necessary    to  state    sums,  291.  n.l. 

time,  and   place,  thonsih   immaterial,         (t)  Cowp,    68.%   684.       Bac.  Abr 

niidei'  a  scilicet,  m  order  to  avoid  the  Plea«,  B. 


305  OF  THE  DECLARATION. 

//  Its  parts,  tial  to  a  logical  statement  of  ihe  defendant's  breach.     Suchaver- 

Fourthly,  the  nients  in  a  special  action  oi  assumhsit  usually  are,   1st.  Of  the 
cause  ot     ac-  .  . 

tion.  performance  or  excuse  for  non-performance  of  a  condition  prece- 

dent ;  2dly.  Of  the  defendant's  notice  of  such  performance  ;  arid, 
3dly.  Of  the  defendant's  having  been  requested  to  perform 
his  contract. (c?) 

V/hen  the  consideration  of  the  defendant's  contract  was  exe- 
cuted or  past  at  the  time  of  makint^  the  contract,  and  his  per- 
formance was  not  to  depend  on  any  subsequent  event  or  other 
circumstance  essential  to  the  action,  the  declaration  should  pro- 
ceed at  once  from  the  statement  of  the  contract  to  the  breach, 
without  any  intermediate  averments,  as  in  a  count  on  an  indebita- 
tus assumpsit.,  £tc.(f)  But  when  the  consideration  of  the  defend- 
ant's contract  was  executory,  or  his  performance  was  to  depend 
pn  some  act  to  be  done  or  forborne  by  the  plaintiff,  or  on 
some  other  event,  the  plaintifl'  must  aver  the  fulfilment  of  such 
1  condition  precedent,  whether  it  were  in  the  aftirmative  or  nega- 

tive, or  to  be  performed  or  observed  by  him  or  by  the  defend- 
ant, or  by  any  other  person,  or  must  shew  some  excuse  for  the 
non-performance. (y)     And  in  the  case  of  reciprocal  covenants 
*■  310  constituting^  mutual  conditions  to  *be  performed  at  the  same  timcy 

the  plaintiff  must  aver  performance  or  a  readiness  to  perform  his 
part  of  the  contract. C^-)  Thus  in  declaring  on  a  promise  to  pay 
a  sum  of  money  in  consideration  that  the  plaintiff  would  execute 
a  release,  the  declaration  must  aver  that  such  release  was  exe- 
cuted or  tendered. (A)  So  on  a  promise  to  pay  money  in  con- 
sideration of  forbearance  by  the  pUiiniiiT,  the  declaration  must 
aver  such  forbearance  ;(?)  and  in  actions  for  not  delivering 
goods  sold,  the  plaintiff  must  in  general  aver  a  readiness  on  his 
part  to  pay  the  price,  Scc.CX:)  But  where  an  estate  or  interest 
passed  or  vested  immediately  in  the  plaintiff,  and  was  to  be  de- 
feated by  a  CQn(}i\Vxonsubsequent,  ov iri'diteY ex  fiostjacto,  whether 


(r/)  Cowp.  f)S3,  684.  and  as  to  avciv  (/)  Ugblred's   case,  7  Co.  10.    a. 

ments  of  performance  of  conditions  Com.  Dig;.  Pleader,  C.  51,  52.    Uoug. 

precedent,   and  of  notice  and  request  686.     1  T.  R.  658. 

in  general,  see  Com.  Dig.  tit.  Pleader,  (  q)  Id.  ibid.    1  East,  203. 

C.  50.  S<c.     1  Saund.  235.  n.    8.    Bae,  (h)  2  Burr.  899. 

Abr.  Pleas  and  Pleading.  (i)  Com.  Dig.  Ple.nder,  C-  52.  Post, 

((')  Post,  vol  2.  5.  101.  vol.  2,  82,  83. 

(k)   1  East,  203.     Post,  vol,  S    ?9 .. 


OF  THE  DECLARATION.  3lO 

in  the  affirmative  or  negative,  or  to  be  performed  by  the  plain-  //.  //,,  pari.". 
tiff  or  defendant  or  by  any  other  person,  performance  of  that  l*''^"rthly,  the 

1       1  •  1-  ,-  •  cause   ol     ac- 

mattcrneed  not  be  averred  ;(/)  as  it  a  grant  of  an  annuity  were   liou. 

till  the  plaintift"  should  be  advanced  to  a  benefice,  he  need  not 

say  that  he  is  not  yet  advanced. (w) 
As  observed  by  Lord  Mansfield,  in  delivering  his  judgment  in 

Kingston  v.  Preston,(n)  "  there  are  three  kinds  of  covenants  : 
"  1st.  Such  arc  called  mutual  and  indefiendent,  where  either 
"  party  may  recover  damages  from  the  other  for  the  injury  he 

may  have  received  by  a  breach  of  the  covenants  *in  his  favour  ^   ^H 

"  and  where  it  is  no  excuse  for  the  defendant  to  allege  a  breach 
*'  cf  the  covenants  on  the  part  of  the  plaintiiT.  2dlv.  There 
"  are  covenants  which  are  cntiditions  defiendent  on  each  other  ; 
"  in  which  the  performance  of  one  depends  on  the  prior  per- 
"  fornuxnce  of  tlie  other  ;  and,  therefore,  till  this  prior  con- 
"  dition  be  performed,  the  other  party  is  not  liable  to  an  action 
"  on  his  covenant.  3dly.  There  is  also  a  third  sort  of  cove- 
"  nants  which  are  mutual  conditions  to  be  performed  at  the  same 
"  time  ;  and  in  these  if  one  party  was  ready  and  offered  to  per- 
"  form  his  part,  and  the  other  neglected  or  refused  to  perform 
"  his,  he  who  was  ready  and  offered,  has  fulfilled  his  engagc- 
"  ment,  and  may  maintain  an  action  for  the  default  of  the 
•'  other,  though  it  is  not  certain  that  either  is  obliged  to  do  the 
"  first  act.  The  dependence  or  independence  of  covenants  is 
"  to  be  collected  from  the  evident  sense  and  meaning  of  the 
"  parties,  and  hoAvever  transposed  they  may  be  in  the  deed, 
"  their  precedency  must  depend  on  the  order  of  time  in  which 
"  the  intent  of  the  transaction  requires  their  performance.  In 
"  the  case  before  the  court,  it  would  be  the  greatest  injustice  if 
"  the  plaintiff  should  prevail  :  the  essence  of  the  agreement 
"  was,  that  the  defendant  should  not  trust  to  the  personal  secu- 
<*  rity  of  the  plaintiff,  but  before  he  delivered  up  his  stock  and 
"  business,  should  have  good  security  for  the  payment  of  the 


(0  7  Co.  10.  a.     Willes,  145,  146.  1.     Tidd's  Prac.  Sil  edit.  382  to  386. 

l>n)  Id.  PI.  Com.  25.  b.     30.  a.     32.  1  East,  203.    Com.   Dig.  Pleader,  C. 

b.     1  T.  R.  64.    2  11.  Bl.  579.  50  to  C.  68.  as  to  conditions  precedciit 

(n)  I)on;».   690,   691.   and    see  the  and  averments  of  performance  in  gc< 

note  in  Willes,  157.    n.    a.      1  Sannd.  neral. 
3-20.  n.  4.    2  Sauiid.  lOS.  n.  3.  352.  ii. 


311  OF  THE  DECLARATION. 

//.  Its  parta.  «  money ;  the  giving  such  security,  therefore,  must  necessa- 
Fourthly,  tlje    ,,     •,     ,  ,•  •  i         >» 

cause  of   ac-       ^"7  ^^  ^  condition  precedent. 

**'"'•  There  are  no  precise  technical  words  in  a  deed  or  other  con- 

tract to  make  a  stipulation  a  condition  precedent  or  subsequent, 
neither  does  it  depend  on  the  circumstance  whether  the  clause 

*  312         is  placed  prior  or  posterior  in  the  deed,  so  that  it  operates  *as 

a  proviso  or  covenant ;  for  the  same  words  have  been  construed 
to  operate  as  either  the  one  or  the  other,  according  to  the  na- 
ture of  the  transaction. (o)  The  contradiction  in  the  determina- 
tions has  arisen  not  from  a  denial,  but  from  a  misapplication  of 
this  principle  in  the  particular  instance.(/i) 

The  words  by  which  conditions  precedent  are  usually  created 
are,  yo'*,(y)  in  consideration  of,  ita  quod.,{r)  /iroindc,is)  Sec.  In 
general,  if  the  agreement  be,  that  one  party  shall  do  an  act^ 
and  that  /or  the  doing  thereof  the  other  shall  pay  a  sum  of  mo- 
ney, the  doing  of  the  act  is  a  condition  precedent  to  the  pay- 
ment, and  the  parly  who  is  to  pay,  shall  not  be  compelled  to 
part  witli  his  money  till  the  thing  be  performed.  If  there  be 
a  condition  precedent,  however  improbable  the  thing  may  be, 
it  must  be  complied  with,  or  the  right  which  was  to  attdcli  on 
its  being  performed,  does  not  vest  ;(0  as  if  the  condition  be 
that  A  shall  enfeoff  B^  and  A  do  all  in  his  power  to  perform 
the  condition,  and  B  will  not  receive  livery  of  seisin,  it  is 
clear  that  the  right  which  was  to  depend  on  the  performance 
of  that  condition  did  not  arise.  And  if  a  person  undertake  for 
the  act  of  a  stranger,  the  cases  are  uniform  to  shew  that  such 
act  must  be  performed.(u)  And  on  this  principle,  where  by 
the  proposals   of  the   Phcenix  Insurance  Comfiany  against  fire, 

*  S13  it  was  stipulated  that  persons  insured,   *should,  in  case  of  loss 

by  fire,  procure  a  certificate  of  the  minister,  Sec.  of  the  parish, 
importing  that  they  knew  the  charucttr  of  the  assured,  and  be- 
lieved that  he  had  really  sustained  the  loss  without  fraud,  it 
was  held  that  the  procuring  of  such  a  certificate,  was  a  con- 


Co)   Per  AsliJuirst,  .1.    1  T.  R.  C45.  edit.  3S3.     1  Sti-a.  569.      1  Vent.  \77. 

CT.  R.   570.    Gf)8.     7  T.  R.   \oO.     1  214.     2  Saund.  350.  S.  C. 

East,  203.  (r)  2  Ld.  Raym.  766. 

(yi)  1  Sannd.  320.  a.     Willes,   157.  («)  Dou-  688.     Willes,  149. 

r.a.  (0  6T.  R.  719. 

(7)  Dou!j.  6S8.     1  Sawnd.  320.   n.4.  \n)    Per  Ld.   Kenyon,  C.   J.   an^ 

\Villcs>    157.  a.        Tidd's  Pmc.  od  Lawrence,  J.     6  T.  R.  719.  722. 


OF  THE  DECLARATION.  313 

tUcion  precedent  to  the  right  of  the   assured  to  recover,  and  //.  Im  parts. 
that   although  it   was  found  by  verdict,  that  the  minister,  Ecc.  f^'J,""''J;f'  *^^* 
■5\ ronglliily  refused  to  sign  the  certificate,  yet  as  it   was  not  tion. 
averred  in  the  declaration  that  the  certificate  was  actually  ob- 
tained, the  judgment  was  arrested. 

Some  rules  have  been  collected,  by  which  to  discover  the 
intenlion  of  the  parties  and  to  ascertain  when  performance  or 
excuse  of  performance  by  the  plaintiff,  is  necessary  to  be 
averred  in  the  declaration  ;(?/)  and,  1st.  Where  a  day  was  ap- 
pointed for  payment  by  the  defendant,  of  money  or  part  of  it, 
or  for  his  doing  any  other  act,  and  such  day  was  to  happen  be- 
fore  the  thing  which  was  the  consideration  of  the  defendant's 
conti'act  was  to  be  performed,  an  action  may  be  brought  for  the 
money  or  for  not  doing  such  other  act  before  performance  by 
the  plaintiff;  for  it  appears  that  the  defendant  relied  upon  his 
remedy  and  did  not  intend  to  make  the  plaintiff's  performance 
a  condition  precedent.(z)  2dly.  But  when  a  day  was  appointed 
for  the  performance  of  the  defendant's  contract,  and  such  day 
-was  to  happen  after  the  time,  when  *the  consideration  of  the  *  314 
defendant's  contract  was  to  be  performed,  in  such  case  in  ge- 
neral, no  action  can  be  supported  until  the  plaintiff  has  per- 
formed his  act,  and  such  performance  must  be  averred. (c) 
3dly.  That  where  the  plaintiff's  covenant  or  sapulution  con- 
stituted only  a  fiart  of  the  consideration  of  the  defcnd.mt's 
contract,  and  the  defendant  has  actually  received  a  partial  bene- 
fit, and  the  breach  on  the  part  of  the  plaintiff  might  be  com- 
pensated in  damages,  an  action  may  be  supported  against  the 
defendant,  without  averring  performance  by  the  plaintiff  ;(6) 
for  where  a  party  has  received  a  part  of  the  consideration  for 
his  agreement,  it  would  be  unjust  that  because  he  has  not  had 
the  whole  he  should  enjoy  that  part  without  paying  or  doing 
any  thing  for  it  ;  and,  therefore,  the  law  obliges  him  to  per- 
form the  agreement  on  his  part,  and  leaves  him  to  his  remedy 
to  recover  any  damage  he  has  sustained  in  not  having  received 
the  whole  consideration.     In  these  cases,  however,  it  seems 


0/)    1  Saund.   320.   n.  4.       Tidd's  {a)  1  Saund.  320.  b. 

Prae.  3(1  ediL  385.  (6;  1  Snuiid.  3;20. »».      1  H.  Bl.  2r3. 

(r)  See   the  cases  referred  to  iti  1  OT.  R.  aT"-!.     Campb.  N.  P.  56. 
Siiimd.  320.  n.  4.     I  Wils.  8S 


S14  OF  THE  DECLARATION. 

II.  Tt!<  purls,   necessary  lo  aver  in   ihe  declaration,  performance  of  at  least  & 
Fouitlilv,  the  part  of  that   v/hich  the  plainlifF  covenanted  to   do,  or  that  the 

cnusc    ol    ac-  .  ,  .  r    r   \ 

uon.  defendant  has  otlierwise  received  a  partial  benent.(c)     4ihl)'. 

But  where  the  mutual  covenants  constitute  the  ivhole  considera- 
tion on  both  sides,  they  are  mutual  conditions,  the  one  prece- 
dent to  the  other,  and  the  plaintiff  must  aver  performance  on 
his  part.((i)  5lhly.  Where  two  acts  are  to  be  done  at  the  same 
time,  as  where  ^i  covenants  or  agrees  to  convey  an  estate  or  lo 

*  315         deliver  goods  to  /i  on  *a  named  day  or  generally,  and  in  con- 

sideration thereof,  Ji  covenants  to  pay  ^  a  sum  of  money  on 
the  same  day,  or  generally  ;  neither  can  maintain  an  action 
without  shewing  performance  of,  or  an  ofler  to  perform,  or  at 
least  a  readiness  to  perform  his  part,  though  it  is  not  certain 
which  of  them  was  obliged  to  do  the  first  act ;  and  this  rule 
particularly  applies  to  contracts  of  sale.(e)  6thly.  Where 
there  are  mutual  promises  and  agrecincnts,  yet  if  one  thing 
be  the  consideration  for  the  other,  there  the  plaintiff's  per- 
formance must  in  general  be  averred. (y)  But  there  are  some 
cases  in  which  it  has  been  decided,  that  where  it  appears  that 
the  defendant  relied  rather  on  the  plaintiff's  agreement  to  per- 
form his  act  than  his  actual  performance  of  it,  it  is  not  neces- 
sary to  aver  his  performance.(^)  7thly.  It  is  said  that  where 
the  participle  "  doing,"  "  performing,"  he.  Is  prefixed  to  a 
covenant  by  another  person,  it  is  a  mutual  covenant,  and  not 
a  condition  precedent. (/t) 
Form   of  In  point  of  form  an  averment  may  be  in  any  words  amount- 

ing to  an  express  allegation  ;(0  as  that  the  plaintiff  avers,  or 
171  fact  saiihy  or  although,  or  because,  or  ivith  this  that,  or  bc' 
itig,  Sec.  and  vvhere  it  is  necessary  to  aver  the  life  of  a  person 
in  pleading,  it  has  been  held  sufficient  if  it  appear  by  implication 

*  316         that  the  *iife  continues. (7)     So  if  it  be  stated  that .^  was  seised 

in  fee  and  died,  and  that  the  land  descended  to  B,  as  his  son  and 


(c)  t  Saund.  320  c.  {h)  2  Bl.  Rep.  1313.      Willes,  UG. 

{d)  1  Saund.  3'2().  n.  4.  406. 

|_f)     1  Sauiul.  320.  n.  4.       2  Saitinl.  (?)   1  Saund.  117.  11.  4.      Com.  Dig. 

35'2.  n.  3.  &  108.  n.  3.     1  East,  203.  Pluader,  C.  77.     As  to  the  manner  of 

{/)     1  Srdk.   in.       1  lid.    Ruyn).  making  an  averment,  see  Covp.   6S3, 

665.     6T.  R.  570.      7  T.  R.  125.      2  684.      1  Saund.   117.    n.  4.       Willes, 

Saund.  252.  n.  3.     5  T.  R.  409.  134.  427. 

{§■)   1  Wi!s.  88.     5  T.  R.  409.      1  (j)    1  Saund.  235.  n.  8.       2  Saund 

Lev.  87.      Com.  Dig.  Pleader,  C.  54.  61.  n.  9. 


OF  THE  DECLARATION,  316 

heir,  this  was  held  a  sufficient  averment  that  A  died  seised. (X)  U-  Jts  pans. 

It  is  not  unusual  in  declarations  on  mutual   promises,  cind  in  f/|,"g   ^.'f  l„, 

covenant  between  landlord  and  tenant,  to  aver  that  the  plaintiff  lion- 

hath  performed  all  things  on  his  part  to  be  perlbrmed,  but  this 

Is  unnecessary  ;(/)  though  it  may  after  verdict  aid  the  omission 

of  an    averment  of   plaintiff's   performance    of    a   particular 

act.(nO 

Where  it  is  necessary  on  the  part  of  the  plaintiff  to  aver 
fxcrfnrmance^  it  must  be  shewn  to  have  been  accordinoj  to  the 
intent  of  the  contract,  for  it  is  not  sufficient  to  pursue  the  words  if 
the  intent  be  not  also  performed  ;  as  on  a  promise  in  considera- 
tion that  the  plaintiff  would  cause  A  to  come  to  be  bound  to  the 
defendant  for  20/.  it  is  not  sufficient  to  aver  that  the  plaintiff 
caused  A  to  come  to  be  bound,  but  it  ought  to  be  also  alleged 
that  A  was  bound. («)  And  an  exact  performance  must  also  be 
stated,  as  in  a  promise  in  consideration  that  the  plaintiff  would 
procure  the  loan  of  20/.  for  one  year,  it  is  not  sufficient  to  al- 
lege that  he  procured  a  part  at  one  time  and  a  part  at  another, 
for  he  ought  to  procure  the  whole  for  the  whole  year  :(o)  and 
performance  ought  to  be  shewn  with  such  certainty,  that  the 
court  may  judge  whether  the  intent  of  the  covenant  has  been 
duly  fulfilled,  *as  in  consideration  that  the  plaintiff  would  acquit  *   317 

A  of  a  debt,  it  is  not  suflicient  to  say  that  he  acquitted  him, 
without  shewing  how,  viz,  by  deed  :(//)  but  if  the  plaintiff  shew  a 
certain  and  exact  performance,  it  is  frequently  sufficient  to  state  it 
in  general  terms,  without  alleging  particularly  how  he  perform- 
ed; as  on  a  promise  to  pay  so  nmch  as  the  plaintiff  should  ex- 
pend for  the  officers  of  the  army,  in  such  a  suit,  an  averment 
that  he  spent  so  much  is  sufficient,  without  shewing  for  what 
ofiicers  in  particular.((/)  And  there  are  some  instances  where 
the  thing  agreed  to  be  done  by  the  plaintiff  having  been  svih«- 
stantially  performed,  though  not  in  the  exact  manner,  nor  with 
all  the  circumstances  mentioned,  it  was  considered  as  a  suffi- 


{k)  2Saund.  61.  g.  n.  9.  (o)    Com.   Dig.   Pleader,  C.  59.— 

(0  1  Saund.  *235.  n.  .5.  Yelv.  S7. 

(w)  Lutw.  253.    Sir  T.  Jones,  1-35.  (/<)   Cro.    J.^c.    50.3.      Corn.    Dig. 

Com.  Dig.  Pleader,  C.  Gl.  PkMder,  C.  CO.     Cro.  Eliz.  914.     Sir- 

(;j)    Com.  Dig.   Pleader.  C.  58.—  T.  .loi:es,  125. 

Yelr,  90.  («)  Conv  Dig.  Pieador,  C.  Si. 

Vol.  T.                                  .[  29  ] 


317  OF  THE  DECLARATION. 

11.  Itn  paru.  cicnt  performance  ;(r)  as  where  the  condition  was  to  enfeoff", 

Foui-Uiiy,  t'le  a  conveyance  l)y   lease  and  release   was  Jield  sufficient  :U)  so 

cause    ot    ao- 

tiwi.  where  the  coudilion  was  to  deliver  the  will  of  the  testator,  and 

the  pkintitf  delivered  letters  testamentary. (/)  Where  the  con- 
dition precedent  was  in  the  disjunctive,  the  averment  of  per- 
formance must  be  framed  accordingly,  and  not  in  the  conjunc- 
tive.(?<) 

In  averring  an  excuse  of  performance  by  the  plaintiff,  he 
must  state  his  readiness  to  perform  the  act,  and  the  particular 
circumstances  wliich  constitute  such  excuse ;  and  therefore 
wheie  the  declaration  stated  tliat  arbitrators  could  not  make 
their  award  without  shewing  the  special  cause  Avhich  prevent- 
^  318  ed  them,  it  was  held  insufficient. (tu)  In  "stating  an  excuse  for 
non-performance  of  a  condition  precedent,  the  plaintiff  must, 
in  general,  shew  that  the  defendant  either  prevented  the  per- 
formance, or  rendered  it  unnecessary  to  do  the  prior  act,  by 
his  neglect  or  by  his  difichurghig  the  plaintiff  from  perform- 
ance.(w)  The  performance  of  a  condition  precedent  may  also 
be  excused  by  the  absence  of  the  defendant  if  his  presence  were 
necessary  for  the  plaintifi's  performance,  or  by  his  neglect  to 
do  the  hrst  act,  if  it  were  incumbent  on  him  to  perform  \i.{x) 
It  may  also  be  excused  in  some  cases  by  the  defendant's  not 
giving  notice  to  the  plaintiff.Cj/) 

Where  the  respective  acts  to  be  done  by  the  plaintiff  and 
defendant  were  mutual^  and  were  to  be  performed  at  the  same 
time.,  the  plaintiff  should  aver  his  readiness  to  perform  his  part, 
and  either  state  that  the  defendant  neglected  to  attend  when 
necessary,  or  refused  to  perform  his  part,  or  discharged  the 
plaintiff  from  his  performance  .(r)  Thus  where  the  defend- 
ant stipulated  to  pay  a  sum  of  money  on  the  plaintiff's 
assigning  to  him  a  certain  equity  of  redemption,  and  the  de- 
claration averred  that  the  plaintiff  was  ready  and  willing,  and 


(>•)  G  T.  R.  7^H.  (.r)  1  Roll.  Abr.  4.57,  45S.     7  T.  R. 

(s)  Co.  Lit.  '207.  a.  1.31. 

(.')  I  lioll.  Abr.  426.  pi.  4.  {y)    1    Roll.  Abr.    457,    458.      C«. 

00  1  Stra.  594.  Lit.  207.  a. 

(v)  -■''i*'J'"'- '^9-  132.  (r)    Dou^-.  081.      I   East,   '2(^3.     t 
(w)  I  T.  R.  638.     Dyiig  6Sl.  CS7,     S.-iu;kI.  332.  n.  3 
688.     Co.  Lit.  200.  b. 


OF  THE  DECLAIJATIOX.  318 

fiffered  to  assign,  and  tendered  a  draft  of  an  assignment  to  the   ^^  ^'•"  /'O''^ 

defendant  for  his  approbation,  and  offered  to  execute  and  de-  ^"•""■^'''>'  ^''« 
'  '  cause  or     ac- 

liver,  and  would  have  executed  and  delivered  such  assignment  t'O"- 
to  the  defendant,  but  that  he  absolutely  dinchargcd  the  pluiniiff 
from  executing  the  same  or  any  assignment  whatever,  and  had 
*not  paid  the  money,  such  declaration  was  on  demurrer  held  *  5]^  9 
sufficient. (G)  So  in  an  action  for  the  non-delivery  of  goods, 
which  the  defendant  had  undertaken  to  deliver  on  request  at  a 
crtain  price,  it  is  sufficient  for  the  plaintiff  in  his  declaration, 
without  alleging  an  actual  tender  of  the  price,  to  aver  such  re- 
quest, and  that  he  was  ready  and  willing  to  receive  the  goods, 
and  to  pay  for  them  according  to  the  terms  of  the  sale,  and 
that  the  defendant  had  notice  of  such  readiness,  but  refused  to 
deliver  them  \{b)  or  if  the  defendant  did  not  attend  at  the 
appointed  place,  such  non-attendance  should  be  stated,  which 
would  render  an  averment  of  request  unnecessary. (c) 

The  omission  of  the  averment  of  the  performance  of  a  con-  Con'^eriuoiices 
...  ,  ^  r         I  r  •      ''^   mistake. 

union  precedent,  or  ot  an  excuse  tor  the  non-pertormance,  is 

fatal  on  demurrer,  or  in  case  of  judgment  by  default  \{(V)  but 
after  verdict  the  omission  may  in  some  cases  be  aided  by  the 
common  law  intendment,  that  every  thing  may  be  presumed 
to  have  been  proved  which  was  necessary  to  sustain  the  ac- 
tion ;  for  a  verdict  will  cure  a  case  defectively  stated  ;(f)  but 
where  the  non-performance  of  the  condition  precedent,  is 
admitted  by  tlie  pleadings,  a  verdict  will  not  aid  the  defect. (/) 

It  is  frequently  necessary,  particularly  in  special  actions  of  ^'  'tife 
assumfisit  to  aver  that  the  defendant  had  notice  of  some  fact  or 
facts  previously  *stated  ;  and  a  great  variety  of  the  instances  ^ 
where  such  averment  is  necessary  arc  collected  in  the  books 
referred  to  in  the  note  (.§•)  and  from  these  it  appears,  that  when 
the  matter  alleged  in  the  pleading  is  to  be  considered  as  lying 
more  properly  in  the  knowledge  of  the  plaintiff"  than  of  the  dc- 


(a)  Dong.  G,S4,  685.  n.    g.  k  h.     I    Saunf].  2CS.  n.  l.Sed 

{!>)  \  East,  2(13.  vide  Doxip:,  6r9.     Cro.  Jac.  S0.1. 

(0  7  T.  R.  129.  1.31.  (/)  6  T.  11.  710. 

(»/)  2  Burr.  809.  2  Saiind.  .i.S2.  n.  .3.  {g)   As    to    averring    Tiodce,    see 

(f)    I  East,   209,  210.      2   S.oiiul.  Com.  Dis?.  tit.  Pleader,  C.  7S,  74,  7?- 

352.  n.  3.      2  Burr.  900.     Dini^^.  687.  Yin.  Ahr.  Xotic«.     Ilardr.  42.     5    T.. 

K.  02t.  C2I. 


320  OF  THE  DFXLARATION.. 

77.  Its  parts,  fendant,  then  the  declaration  ought  to  state  that  the  defendant 

Fourthly,  the   had  notice  thereof;  as  where  the  defendant   promised  to  t>;ivc 
cause    ot    jic-  .  ..         i  o 

tioii.  the  piainiifT  as  much  for  a  commodity  as  another  person  had 

given,  or  should  give  him  for  the  like,  or  to  pay  the  plaintiff 
what  damages  he  had  sustained  hy  a  battery,  or  to  pay  the 
plainti ft"  his  costs  of  suit  :(/0  and  in  a  declaration  against  the 
drawer  or  indorsee  of  a  bill  of  exchange,  it  is  material  to 
aver  notice  of  non-payment  by  the  acceptor,  or  some  excuse 
for  the  neglect. (z)  But  where  the  matter  does  not  lie  more 
properly  in  the  knowledge  of  the  plaintiff  than  of  the  defend- 
ant, notice  need  not  be  averred. (;')  Therefore,  if  the  deicnd- 
ant  contracted  to  do  a  thing,  on  the  performance  of  an  act  by  a 
stranger,  notice  need  not  he  averred,  for  it  lies  in  the  defcndi^ 
ant's  knowledge  as  much  as  the  plaintiff's,  and  he  ought  to 
take  notice  at  his  peril  \{k)  and  tiiough  it  is  usual  in  practice, 
in  a  declaration  in  debt  upon  an  award,  and  in  the  replication  in 
^   321  debt  on  l)ond  conditioned  *for  performance  of  an  award,  to  aver 

that  the  defendant  had  notice  of  the  award,  such  averment  i« 
unnecessary,  because  the  defendant  ought  to  take  notice  of  the 
award,  unless  it  was  expressly  provided  in  the  submission  that 
the  award  should  be  notified  to  the  panics,  when  notice  must 
be  alleged. (/) 

So  if  upon  a  treaty  of  marriage  a  promise  be  made  by  a  third 
person  to  pay  the  feme  100/.  after  the  death  of  the  husband^ 
it  is  not  necessary,  in  an  action  upon  this  promise,  to  aver  that 
the  defendant  had  notice  of  the  death  ;  and  in  a  declaration  on 
a  promise  to  pay  a  sum  of  money  at  the  full  age  of  an  infant, 
notice  of  his  attaining  that  age  need  not  be  alleged,  because  it 
is  as  notorious  to  the  one  as  to  the  other  (w?)  On  the  sameprin^ 
ciple,  if  a  man  be  bound  to  another  to  indemnify  him  against 
the  acts  of  a  third  person,  no  notice  of  those  acts  is  necessary 
to  be  alleged  ;(n)  and  in  an  action  on  a  promissory  note  by  the 
indorsee  against  the  drawer,  notice  of  the  indorsement  need 
not  be  averred  ;(o)  and  if  the  defendant's  promise  were  to  pay  on 
the  performance  of  a  certain  act,  even  by  the  plaintiff  himself  to 

(/i)  2  Saund.  62.  a.  n.  4.     Cro.  Jac.  {h)  Com.  Dig.  Pleader,  C.  75. 

432.      Hardr.    43.      Com.    Dig.    tit.  (/)  2  Saund.  62.  a.  n.  4.    llardr.  42. 

Pleader,  C.  73.    5  T.  R.  621.  624.    II  Com.  Dig.  Pleader,  C.   75.     5  T.  R 

:Mod.  48.  621.  624. 

(J)  Doug.  679,  680.  (w)  Hard.  42.     1 1  Mod,  48. 

0)  1  Saund.  117.  n.  2.  2  Saund.  («)  I  Saund.  116. 

82.  a.  u.  4.  Freem.  Rep.  285.  (o)  1  B.  k  P.  C25. 


OF  THE  DECLARATION.  521 

the  defendant,  or  a  stranger,  there  are  cases  in  which  it  has  been  IT.  If.i  pr.ru- 

decided  that  notice  of  the  act  need    not  be  averred,  because  Fimidily,  the 

Ciiupe    of   ac- 

i)y  the  terms  of  the  contract  the  defendant  engaged  to  take  no-  v<>\i 
tice  of  it  at  his  peril  ;  as  if  the  dcfendiint  contracted  to  ])ay  on 
the  marriage  of  the  obligee  uith  ^  i{/>)  and  in  the  *casc  of  a  *   322' 

precedent  condition  to  be  performed  by  the  plaintiff  to  the  de- 
fendant in  person,  notice  of  the  plaintiff's  performance  need  not 
be  averred,  because  it  is  implied. (y) 

Where  notice  is  necessary,  it  ought  to  appear  that  it  was 
given  in  due  time,  and  to  a  proper  person  ;(r)  but  where  a  spe- 
cial request  is  averred,  notice  will  sometimes  be  presumed  ;(•«) 
and  the  absconding  of  the  party  or  other  circumstances  may 
be  stated  as  an  excuse  for  the  want  of  notice. (0  The  oniis- 
sion  of  an  averment  of  notice  when  necessary,  will  be  fatal  on 
demurrer,  or  judgment  by  default  ;(w)  but  may  be  aided  by  a 
yerdict,(x;  unless  in  an  action  against  the  drawer  of  a  bill, 
when  the  omission  of  the  averment  of  notice  of  non-payment  by 
the  acceptor  is  fatal  even  after  verdict. (?/) 

Whenever  it  is  essential  to  the  cause  of  action,  that  the  Requcsf. 
plaintiff  should  have  requested  the  defendant  to  perform  his 
contract;  such  request  must  be  stated  in  the  declaration,  and 
proved.(z)  It  has  been  observed,  that  if  it  had  been  held  that 
a  request  was  essential  in  all  cases,  many  vexatious  actions 
might  be  avoided,  but  there  are  a  variety  of  instances  in  which 
it  is  settled  that  no  request  is  necessary  anterior  to  the  action, 
and  consequently   need   not  be   stated    in   pleading  ;(«)  *thu3  *    32o 

where  the  declaration  is  upon  a  contract  to  pay  a  firecedent  debt 
or  duty,  as  in  the  case  of  the  common  counts  for  goods  sold, 
>vork.  and  labour,  money  lent,  &:c,  no  request  need  be  stated  or 


(/))   2    Rulstr.    £54,      Com.    Dig.  (.r)  1  Su-h.  214.     1   Sauud.   228.  m. 

Plea(ter,  C.  75.  (_i/)  Doug.  679. 

(9)  Com.  Dig.  Plciuler,  C.  75.  (:)  As  to   requests  in  general,  see 

(»•)  III.  ibid.  C.  74.     ,  Cora.  Dig.  Pleader,  C.    69  to  73.     1 

(s)  Ci-o.  Jac.  2-28,  229.     I  B.  8c  P.  Saund.  33.  n.  2.    I  Stra.  8S.    2  Ventr. 

626.     3  BuLsir.  320,  327.  7i. 

(0  Cliilty  on  Bills,  2d.  edit.  345.  n.  («)  1  B.  k  P.   59,  60.    Cro.  Eli/,. 

u     I  SaJk.  214.     Via.    Abr.   Notice,  548.      Post.       Chitly   on    Bills,    2(< 

A.  2.  edit.  183,  1^4. 
(m)  Cro.  Jac.  432. 


325  OF  THE   DECLARATION. 

II.  Its  parts,  proved  ;(b)  and  though  formerly  a  distinction  was  made  be- 
Fourthly,  the  tween  a  promise  to  pay  a  precedent  debt,  and  one  to  become 
*ause    of  ac-  i    j       i 
tion.  due  on  a  subsequent  event,  that  distinction  is  now  overruled; 

thus  where  the  declaration  stated  that  the  defendant  in  con- 
sideration that  the  plaintift'  ivould  make  him  a  set  of  sails  worth 
45/.  promised  to  pay^so  much  for  them  on  request,  it  was  decided 
that  no  request  to  pay  was  necessary  to  be  stated,  because  on  the 
making  the  sails,  the  money  immediately  became  due,  and  that 
the  case  before  the  court  differed  from  those  where  the  payment 
is  to  be  to  a  third  person,  or  where  an  award  directs  a  request  ;(c) 
and  though  a  distinction  was  fortnerly  taken  between  a  promise 
by  the  defendant  to  pay  a  debt,  originally  his  own,  and  that  of 
a  third  person,  that  distinction  has  been  since  overruled,(f/) 
And  in  these  cases  it  appears  to  be  immaterial  whether  or  not 
the  defendant's  contract  were  expressly  laid  to  be  to  perform 
the  same  on  request. (e) 

But  when  by  the  express  or  implied  terms  of  the  contract, 
it  was  incumbent  on  the  plaintiff,  before  the  commencement 
of  his  action,  to  request  the  defendant  to  perform  his  contract, 
*  324  such  request  being  as  it  were  a  condition  precedent,  *must  be 
averred. (y)  Thus  in  an  action  for  not  delivering  a  horse.  Sec. 
sold  by  the  defendant  to  the  plaintiff,  or  for  not  finding  timber 
for  repairs,  the  declaration  should  allege  a  special  request  to 
deliver  the  same. (5')  So  if  the  contract  were  to  deliver  up  a 
bond  to  be  cancelled  on  request  ;(/i)  or  if  an  award  directed 
the  defendant  to  perform  some  act  on  request, (i)  or  if  the  de- 
fendant contracted  as  surety  to  pay  the  debt  of  a  third  person 
on  request,  in  these  cases  the  request  must  be  alleged  and 
proved. (7) 

In  point  of  form  there  are  in  fileading  two  descriptions  of 
requests,  the  one   termed  a  special  request,  the  other  the  licet 


(6)  1  Siiurjf].  33.  k  id.  n.  2.       Bull.  211.  151.  1:31.     1  Saiind.  32,  .33.     5  T. 

N.  P.  151.  K.  409.     3  Bulstr.  2tl'. 

(c)  iStra.  8S.    2  Ventr.  75.    Cro.  (g)  5  T.   It.   409.     Sir  W.  Jones, 
Jac.  523.  56.     1  East,  204.      Com.  Dijj.  Plcad- 

(d)  1  Stt-a.  8'.).     Cro.  Jac.  523.  cr,  C.  f)9. 

(e)  1  Stra.  8S.     1  Saund.  33.    Cro.  (h)  3  Bidstr.  297. 
Eliz.    54S  ace.      Cro.  Jac.    523.  183.  (/)  1  Saund.  32. 

Owen,  109.     Cro.  Eliz.  85.  co>itra.  ( /)    Cro.   Jac.   500.      Owen,    109. 

(/)  Com.   Dig.   ricader,  C.  69.—  1  Saund.  32.  n.  2.      Sed   vide   1  Stru. 

88,  89. 


OF  THE  DECLARATION.  524 

sa/i!u.i  re(/uisitus,  or  »  although  often  requested  so  to  do." —  //.  -ft*  parts. 
When  an  actual  request  is  essential  to  the  support  of  the  ac-  ^^^^^^%'  ^!^^, 
tion,  a  special  request  must  be  stated,  and  it  must  be  shewn  lion: 
by  and  to  whom  the  same  was  made,  and  the  time  and  place 
of  making  it,  in  order  that  the  court  may  judge  whether  th^ 
request  were  sufficient  •,(k)  and  the  omission  of  such  special 
request  would  be  bad  on    a   general  demurrer :(/)  and  it  has 
been  decided,  that  it  would  not  be  aided  by  verdict  ;(wO  but 
from  the  principle  dcducible  from  other  cases,  it  should  seem 
that  a  verdict  would  at  common  law  aid  the  defect. («)     TfiiC 
licet  *sa/iius  recjiddtus,  or  "  although  often  recjuested  so  to  do,"  ^   325 

without  stating  the  time  and  place  of  request,  though  usually 
inserted  in  the  common  breach  to  the  money  counts,  is  of  no 
avail  in  pleading,  and  the  omission  of  it  will  in  no  case  vitiate 
the  declaration  ;(o)  and,  therefore,  where,  in  a  declaration  up- 
on a  note  payable  four  months  after  date,  it  was  objected  in 
error  that  the  request  to  pay  the  money  in  the  note,  \vas  laid 
in  the  common  breach  at  the  end  of  the  declaration,  to  have 
been  upon  the  same  day  and  year  aforesaid,  which  was  the 
date  of  the  -note,  and  four  months  before  it  became  due,  it 
was  adjudged  upon  a  writ  of  error  that  there  was  no  occasion 
to  lay  any  request  at  all,  for  the  bringing  the  action  was  a  re- 
quest in  law.(//) 

The  breach  of  the  contract  being  essential  to  the  cause  of  Brearfi; 
action,  must  in  all  cases  be  stated  in  the  declaration. (y)  When 
the  special  count  in  assuitifisit  is  merely  for  a  money  demand, 
and  other  common  counts  are  subjoined,  the  usual  breach  in 
the  conclusion  of  the  declaration  stating  the  request  to  pay,  to 
have  been  after  the  money  on  the  special  count  was  due,  will 
suffice  ;  and  in  declarations  on  bills  of  exchange  and  promis- 
sory notes,  it  is  not  usual  to  state  any  other  breach  than  that 
at  the  end  of  the  common  counts. (r)     But  when  the  breach 


(A-)  I  Stra.  89.      Com.  Dig.  Plead-  (;i)     I  Stra.   89.   214.      1  WUs.  3J. 

€T,  C.  69,  70.  8ie.      1  Sauml.  33.     5  7  T.  R.  522.     1  Saund.  22S.  n.  1. 

T.  R.  409.  (o)  2  H.  Bl.  131.    1  B.  k  P.  59,  CO, 

(/)  5  T.  R.  409.  Plowd.  128.  b.     Haidr.  38.  72. 

(m)    3  Bul-str.  299.      Cro.  Eliz.  85.  (/>)  1  Wils.  33.      1  B.  &  P.  59,  CO. 

Sir  W.  Jones,  56.     1  Saund.  .33  n  ','  (9)    Com.  Dig.  Pleader,  C.  44,  kc 

Com.  Dig.  Plcadw,  C.  6?.  {r\  \  M  its  :■.?• 


325  OF  THE  DECLARATION. 

JI.  Iti  parts,  is  not  merely  the  non-payment  of  money,  it  is  usually  stated 

Pourtliiy,  the  in  each  special  count.     The  breach  must  *obviously  be  orovem. 

cause    ot    ac-  »  y         o 

j5ion.  ed  by  the  nature  of  the   stipulation.     It  should  be  assigned  in 

3l6  the  words  of  the  contract,  either  negatively  or  affirmatively,  or 
in  words  which  are  coextensive  with  the  import  and  effect  of 
it.(/)  Where  the  contract  was  specific,  to  door  forbear  some 
particular  act,  it  is  in  general  sufficient  to  assign  the  breach  in 
the  words  of  the  contract ;  thus,  if  the  contract  were  to  shew 
a  sufficient  record,  it  is  enough  to  allege  that  the  defendant 
did  not  shew  a  sufficient  record,  thougii  issue  cannot  be  joined 
upon  it,  because  sufficiency  of  matter  of  record  cannot  be  tried 
by  a  jury  ;  but  the  defendant,  on  such  breach  assigned,  may 
plead  that  he  shewed  such  a  record,  and  upon  demurrer  the 
court  will  judge  wheilicr  it  be  sufficient^?/)  So  in  covenant 
by  an  apprentice  for  not  finding  victuals  and  other  necessaries 
in  the  words  of  the  contract,  is  sufficient  ;(t;)  and  a  breach  in 
the  words  of  the  covenant,  for  not  repairing  without  enume- 
rating the  particular  dilapidations,  will  suffice. (w)  And  in 
general  if  a  breach  be  assigned  in  words  containing  the  sense 
and  substance  of  the  contract,  though  they  are  not  in  the  pre- 
cise words  of  such  contract,  it  ^s  sufficient  ;(x)  as  if  the  de- 
fendant's promise  were  to  guaranty  the  payment  of  the  debt 
of  a  third  person,  a  breach  that  the  defendant  did  not  pay  the 
debt  will  not  suffice  :{]/)  so  if  a  policy  insured  a  ship  against 
*  327  ^^^^  barratry  of  the  captain,  and  the  breach  *is  assigr^ed  that 
the  ship  was  lost  by  the  fraud  of  the  captain,  it  is  sufficient. (z) 
If  the  contract  were  in  the  disjunctive^  the  breach  ought  to 
be  assigned  that  the  defendant  did  not  do  the  one  act  or  the 
other ;  as  on  a  promise  to  deliver  a  horse  by  a  particular  day, 
of  pay  a  sum  of  money  ;(a)  and  if  a  covenant  be  "  that  the 
"  defendant  and  his  executors  and  assigns  should  repair,"  a 
breach  for  not  repairing  ought  not  to  be  in  the  conjunctlve.(6) 


(0     Com.  Dig.  Pleader*  C  45,  46,  (x)  Com.  Dig.  Pleader,  C.  46. 

4r,  48,  49.      1.1.  2.   V.   2.     2  Saund.  (w)  1  Sid.  178.     2  Roll.  738.  1.  15. 

ISt.b.  c.  (j)  1  Su-a.  581. 

(«)  Yolv.  .SO,  40.    Com.  Dig.  Plead-  (")    1  Sid.  440.  447.      Hardr.  320. 

tr,  C.  45.  Cora.  Dig.   Pleader,  C.      1  Stra.  231 

{v)  3  Lev.  170.  Ante,  45. 

>>•)  Lutw.  S29.  (*)  Cro.  Elia.  348.     I  Stra.  22S. 


OF  THE  DECLARATION,  327 

But  in  assigning  the  breach  of  a  covenant  or  contract  to  pay  or  //.  Its  pane. 
«  cause  to  be  paid"  a  sum  of  money,  it  is  sufficient  to  say  that  ^  y"''*''[^-'  *''J^ 
the  defendant  did  not  pay,  omitting  the  disjunctive  words,  for  tion. 
he  who  causes  to  pay,  pays  ;(c)  and  a  breach  that  the  defend- 
ant did  not  pay  several  persons  is  sufficient,  without  adding 
'the  words,  or  either  of  them.((i)  A  distinction  has  been  taken 
between  a  contract  to  perform  a  thing  to  a  man  or  his  assigns, 
and  by  a  man  or  his  assigns  ;  and  that  if  a  thing  be  to  be  done 
by  a  man  or  his  assigns,  the  breach  must  be  in  the  disjunctive, 
that  it  was  not  done  by  him  or  his  assigns ;  but  that  where  a 
thing  is  to  be  done  to  a  man  or  his  assigns,  it  is  sufficient  to 
assign  for  breach  that  it  was  not  done  to  him  ;(e)  but  there 
appears  to  be  no  foundation  for  this  distinction,  and  where  the 
action  is  between  the  original  parties  to  the  contract,  as  no  as- 
signment will  be  presumed,  it  will  be  sufficient  to  state  that 
the  defendant  did  not  perform  the  act  to  the  plaintiff,  without 
mentioning  the  *assignee  or  heir  ;{/")  but  if  the  action  be  by  *    328 

or  against  an  assignee,  heir,  or  executor,  the  breach  should 
then  be  in  the  disjunctive  ;  and  a  declaration  by  husband  and 
wife,  or  by  an  administrator,  merely  stating  that  the  defendant 
did  not  pay  before  the  marriage,  or  that  he  did  not  pay  since 
the  death,  would  be  bad  on  demurrer,  though  aided  by  ver- 
dict.(5-) 

If  the  breach  vary  from  the  sen^e  and  substance  of  the  con- 
ti'act,*and  be  either  more  limited  or  larger  than  the  covcn^mt, 
it  will  be  insufficient  -yji)  as  in  covenant  to  repair  a  fence,  ex- 
cept on  the  west  side  thereof,  a  breach  that  the  defendant  did 
not  repair  the  fence,  without  shewing  that  the  want  of  repair 
was  in  other  parts  of  the  fence  than  on  the  west,  is  bad  on  de- 
murrer, though  aided  by  verdict. (/)  So  if  the  coven..nt  were 
for  quiet  enjoyment,  without  lawful  disturbance,  a  breach 
merely  stating  that  the  plaintiff  was  distuibed  is  insufficient, 
for  it  should  be  that  he  was  legitimo  modo  disturbed  in  the 
words  of  the  covenant,  or  otherwise  the  plaintiff  should  shew 


(c")  1  Stra.  231.    1  Saund.  £35.  n.  6.         {g")    1  Ld.   Ravm.   '2S4.      1  Veiitr 

((/)  Id.  ibid.  119.     2  Rich.  C.  P.  '293. 

(e)  1  Salk.  139.     5  Mod.  133.  (/z)  Sir  T.  Jones,  1-25. 

(/)  1  Stra.  228.  (?)  Cora.  Dig.  tit.  Pleader,  C.  M. 

Vol.  L  [  30  ] 


328  OF  THE  DECLARATION". 

II.  lis  parts,  by  whom  he  was  disturbed,  and  how.fA)     So  where  the  decla- 
Foiirililv,  the   ration  is  upon  a  covenant  f^r  8:ood  tiile,  it  ■should  be  shewn  that 

cause    ol    ac-  .     ,  •     -^ 

tioii.  the  person  evicting*  had  a  lawful   title  before,  or  at  the  time  of 

the  date  of  the  grant  to  the  plaintiff,  and  an  averment  that  he 
had  a  lawful  title,  without  this  c]ualification,  is  too  general  and 
bad  after  verdict,  for  it  will  be  intended  that  the   title  of  the 

*  329         person  entering  is  *derived  from  the  plaintiff  himself.     Bui  it 

seems,  that  the  j)haiuiff  is  under  no  necessity  of  setting  out  the 
title  of  the  person  who  entered  upon  him,  because  he  is  a 
stranger  to  it,  it  being  considered  sufficient  to  allcsre  generally, 
that  he  had  a  lawful  title  before,  or  at  the  time  of  the  lease  or 
conveyance  to  the  plaintiff.(A:) 

On  tiie  other  hand  it  is  injudicious,  unnecessarily  to  varronv 
the  breach.  Thus,  where  the  breach  of  covemait  was  assi-^n- 
ed,  that  the  defendant  had  not  used  the  farm  in  a  husbanolike 
manner,  but  on  the  contrary  had  committed  wasie^  it  v/as  held 
that  the  plaintiff  could  not  give  evidence  of  the  defendant's 
using  the  farm  in  an  unhusbandlike  munncrv  if  such  misoontluct 
did  not  amount  to  waste>  though  on  the  former  words  of  the 
breach  such  evidence  would  have  been  admissible.;/) 
-  The  breach  in  general  should  be  certain  and  express,  smd  a 
general  statement,  that  the  defendant  has  not  perfojrned  his 
agreement  or  promise,  is  bad  on  demurrer,  though  aided  by 
verdict. (?«)  A  distinction  has  been  taken  with  regard  to  the 
degree  of  certainly  between  an  action  on  a  bond  conditioned 
for  the  performance  of  covenants,  and  an  action  of  covenant  ;cn) 
however,  no  such  distinction  now  prevails  ;(o)  and  where  to 
debt,  on  bond  conditioned  that  one  B  R  should  account  for  and 
pay  over  to  the  plaintiffs  as  treasurers  of  a  charity,  such  vo- 
luntary contributions  as  he  should  collect  for  the  use  of  the 

*  530         chaiily,  the  defendants  *pleaded  general  performance,  and  the 

plaintiffs  replied,  that  B  R  had  received  divers  sums,  amount- 
ing to  a  large  sum,  viz.  lUO/.  from  divers  persons,  for  divers 
voluntary  contributions  for  the  use   of  the  said  charity,  which 


Xk)    2  Saund.   ISl.   b.  Com.  Dig.         (w)  Com.    Die;.    Pleader,    C.     48. 
Plca.'er,  C.  4".  49.  Skin.  344.     4  Mod.  188.     3  Lev.  319. 

{k)  -.'  Saund.  181.  n.  10.  Com.  Dig.         («)  1  S:i!k.  1,39.     1  Lev.  94. 
Pleader,  C.  47. 49.  (o)  See  1  B.  k  P.  642. 

(0  3  T.  R.  307.  637. 


OF  THE  DECLARATION.  3.30 

he  had  not  accounted  for  or  paid  over,  &c.  it  was  held  on  spc-   //.  jts  pam. 
cial  demurrer,  that  the  replicadon  was  sufficiently  certain  \(fi^  F«'>itl'ly)  the 
foi-  it  is  a  general  rule  ui  pleading,  that  where  any  matter  tends  Uon. 
to   j^reat  prolixity,  a  concise  manner  of  pleading  it  may    be 
admitted:  and  wiiere  the  breach  lies  more  in  the  defendant's 
thai)  the  piain'ift's  knowledge,  less  particularity  is  required. (v) 

By  the  common  law,  in  an  action  of  covenant,  the  plaintiff 
was  at  liberty  to  assign  breaches  of  each  of  the  covenants  in 
the  iiidcucurcf,  S:c.  in  order  to  increase  the  damages  ;(r)  but  in 
an  action  upon  a  bond,  the  plaimitf  could  assign  only  one 
breach  ot'  the  condition,  for  if  heassigried  several  breaches,  the 
decluration  was  bad  for  duplicity,  because  the  bond  was  for- 
feited by  the  breach  of  one  covenant  as  much  as  of  several  co- 
venants ;  but  now  by  statute, cO  the  plaintiff"  is  at  liberty  to  as- 
sign several  l)reaches  of  the  condition  of  a  bond,  and  it  is  fre- 
quently expedient  to  state  the  same  in  the  declaration. (u)  Still 
however,  two  breaches  of  tlie  same  specific  stipulation  cannot 
be  assigned  in  one  count  ;(z')  though  where  the  defendant's 
contract  was  general,  as  by  a  tenant  to  observe  the  due  course 
of  husbandry,  *tl:e  declaration  may  state  various  breaches  of  *  331 
good  husbandry.  •7i')  Where  seveial  breaches  of  the  condition 
of  a  bond  are  assigned  under  the  statute,  it  is  usual  to  allege 
that  they  are  assigned  by  virtue  or  in  pursuance  of  the  sta- 
tute \{x)  but  this  seems  unnecessary,  the  statute  being  a 
public  law,  and  the  assignment  of  several  breaches  a  matter  of 
right  without  the  leave  of  the  court. 

In  point  of  form  it  is  usual  in  assumfisit  to  introduce  the 
statement  of  {he  particular  breach,  with  the  allegation  that  the 
defendant  contriving  r.nd  fraudulently  intending,  craftily  and 
subtly  to  deceive  and  defraud  the  plaintiff,  neglected  and  refu- 
sed to  perform,  or  performed  the  particular  act,  contrary  to  the 
previous  stipulation.  But  this  introduction  is  unnecessary,  the 
gist  of  the  action  of  asfiumjisit  being  the  injury  sustained  by  the 
plaintiff  by  the  privation  of  his   right,  without   relation  to  the 


(/<)  8  T.  R.  403.     1  R.  k  P.  640.  n.  2.     See  the  forms,  vol.  2.  15.3,  154 

(7)  8  T.  ){.  462.     1  Lutw.  421.  (r)  Com.  Di-  Pleader,  C.  33. 

\r)  2  Co.  4.  a.     1  Saund.  58.  b.  (-u;)  4  E.ist,  154.  vol.  2.  135. 

(s)   1  Saund.  58.  n.  1.     Com.  Dig.  (x)  Com.  Dig.  Pleader,  2.  V.  2.     1 

PUader,  C.  33.  H.  Bl.  275.  278.     1  \Vils.  219.  Covvp 

(0  8  k  9  W.  111.  c.  11.  500,  501.     Andr.  108 
(«)  1  Sauiid.  58.  n.  1.  2  Saund.  ISr. 


331  OF  THE  DECLARATION. 

//.  Its  parts,  defendant's  fraud. (i/)     And  in  declarations  against  a  peer,  the 
Fourthlv,  the  imputation  of  fraud  should  be  omitted. fz) 

cause    of    ac-         '  *■ 

tion.  The  insufficiency  of  the  breach    will  in  general  be  aided  by 

the  common  law  intendment,  that  it  is  not  to  be  presumed  that 
either  the  judge  would  direct  the  jury  to  give,  or  thi«t  the  jury 
would  have  given,  the  verdict  without  sufficient  proof  of  the 

"^  332  breach  of  contract  ;(a)  and  'therefore,  where  in  an  action 
against  husband  and  wife,  on  the  covenant  of  the  feme  whilst 
sole  to  perform  an  award,  it  appeared  that  the  award  was  made 
after  the  marriage,  which  was  a  legal  revocation  of  the  arbi- 
trator's authority,  and  consequently  the  breach  was  improperly 
assigned  in  the  non-performance  of  such  award,  it  was  decided 
that  the  pluintiffwas  entitled  to  recover,  because  it  appeared  that 
the  /tnit  had  broken  her  covenant  by  the  very  act  of  marriage, 
which  though  a  different  breach  to  that  assigned,  was  sufficient 
after  verdict  to  support  the  declaration. (6)  We  have,  how- 
ever, seen,  that  in  some  instances  a  defective  statement  of  a 
breach,  as  of  a  covenant  for  quiet  enjoyment,  will  be  fatal  even 
after  verdict. (f) 

Damages.  Such  damages  as  may  be  presumed  necessarily  to  result  from 

the  breach  of  contract,  need  not  be  slated  in  the  declaration  ; 
but  in  other  cases  it  is  necessary  to  state  the  damages  arising 
from  the  breach  of  contract,  specially  and  circumstantially,  in 
order  to  apprise  the  defendant  of  the  facts  intended  to  be  pro- 
ved, or  the  plaintiff  will  not  be  permitted  to  give  evidence  of 
such  damage  on  the  trial. (i)  And  in  some  cases  where  the 
plaintiff'  seeks  to  recover  damages,  he  must  declare  specially, 
,  though  lie  might  have  recovered  the  principal  part  of  his  de- 

mand under  a  common  count :  thus,  in  an  action  against  the 
vendor  of  an  estate,  for  not  making  a  good  title  to  or  convey- 

^   333  ing  the  same,  only  the  deposit  money  can  be  recovered  *under 

the  count  for  money  had  and  received,  and  if  the  purchaser 


{y)  6  East,  443.  (c)  2  Saund.  181.  n.   10.     And  see 

(z)  Imp.  K.  B.  f)th  edit.  526.  1  Sid.  440.  ante,  528.  sed  qu. 

(a)  Sir  T.  Jones,  125.     1  Salk.  140.         (rf)  As  to  damages  in  general,  see 

4  iSIod.  189.  b.  Skinner,  344.    5  East,  Vin.  Abr.  tit.  Damages,  and  Saver's 

pro,  271.     Com.  Dig.  Pleader,  C.  48.  Law   of  Damages.     And   see  post,  as 

1  Saund.  228.  n.  1.  to  the  statement  of  damages  in   ao. 

(6)  5  East,  270,  271.  tions  for  torts 


OF  THE  DECLARATION.  333 

proceed  for  interest  and  expenses,  he  must  declare  specially,  U   J'-'  /""•'•» 
staling  such  expenses,  and  the  loss  arising  from  the  not  having  f^u"c*^'oV'   alf- 
ihe  use  of  the  deposit  money,  Scc-Ce)     The  damages  should  be  t'^"- 
stated  according  to  the  fact  of  the  case,  but  no  inconvenience 
will  ai'ise  from  the  statement  being  much  larger  than  the  proof: 
thus  in  a  declaration  on  a  policy  of  insurance  stating  a  total 
loss,  a  partial  loss  may  be  recovered.(/)     In  stating  the  dama- 
ges, care  must  be  taken  that  no  part  thereof  appears  to  have 
accrued  after  the  time  to  which  the  declaration  by  its  title  re- 
fers ;  for  though  the  mistake   could  not   be    taken  advantage 
of  by   demurrer,  yet  after  a  general  verdict  it  would  be  fatal, 
unless  the  damages  were  laid  under  a  scilicct.{g) 


The  common  counts  in   assumjisit    are  frequently  sufficient  C'^-mmon 

counts. 

Without  any  special  count ;  and  even  where  the  declaration  con- 
tains a  special  count,  it  is  in  general  advisable  to  insert  one  or 
more  of  the  common  counts  ;  for  though  it  is  a  rule,  that 
when  there  was  an  express  contract  the  plaintiff  cannot  resort 
to  an  implied  one,(A}  yet  he  may,  in  many  cases,  recover  on  the 
common  count,  though  there  was  a  special  agreement ;  *and  *•  534 
such  a  count  may  frequently  save  a  verdict  where  the  evidence 
may  vary  from  the  special  count ;  thus,  if  the  plaintiff  declare 
specially  as  having  built  a  house  according  to  an  agreement, 
if  he  fail  to  prove  that  he  has  built  it  pursuant  to  the  agree- 
ment, he  may  still,  in  some  cases,  recover  on  the  common  count 
for  the  work  and  labour  actually  done.(?)  And  where  a  pro- 
missory note,  upon  an  improper  stamp,  has  been  taken  in  pay- 
ment of  a  debt,  the  plaintiff  will  be  at  liberty  to  resort  to  the 
common  counts  appropriate  to  the  debt.(y)  But  where  the  de- 
mand is  founded  upon  a  written  agreement,  which  ought  to  be, 


(e)  See  4  Esp.  Rep.   223.     1  B.  St  80.  85.     6  T.  R.  .3-25.    7  T.  R.  243.    1 

P.  306.     2  Bl.  Rep.   lOrS.     Post,  vol.  Stia.  648.     Peake,    103.     3  B.   k  P. 

3.  125,  126.  247.     6  East,  560.     There  is  no  »lis- 

(/)  2  Burr.  904.     1  Bl.  Rep.  198.  tiiiction  in  pka<iing  between   an  ex. 

Jtlyrshall  on   Insurance,  629.     Saver  pre.ss  and  implied  promise, 
on  Damages,  45.  {i)    Per   Sir  J.   Mansfield,  1  Xev 

(j)  2  Saund.  171.  n.  1.    3  Lev.  315.  Rep.  355.     Bull.  N.  P.  139.     Pavite 

«nte,  259.  v.  Bacomb,  Dou^.  651. 

(/»)  2  T.  R.  105.  640.     3  East,  78.         ( j)  1  East,  58. 


334  OF  THE  DECLARATION. 


1 


II.  lis  parts,  but  IS  not,  Stamped,  the  plaintiff  will  not  be  permitted,  in  evi- 

Fourthly,  the  dcnce,  to  resort  to  an  implied  contract,  in-order  to  avoid  the  pro- 
cause   of  ac-  . 
tion.                 duction  or  such  express  agreement. (A:) 

Coinmrm  counts  in  an  action  of  assumfisit  are  founded  on  ex- 
press or  implied  promises,  to  pay  money  in  consideration  of  a 
Jirecedent  debt.)  and  are  of  four  descriptions  :  1st.  The  indebitU' 
(us  assumpsit  ;  2dly.  The  quantum  meruit  t  3dly.  The  quantum 
valebant ;  and,  4thly.  The  account  stated. 

The  indfbitatus  assum/mt  count^/)  states,  that  "  the  defend- 

«  ant  on  the day  of  •■  ■  -,  at in  the  county  of  ,(?«) 

*  335  "  '^'^^  indebted  to  *the  plaintiff  in  a  named  sum  of  money,  for 
"  real  property  or  goods  sold,  or  for  personal  services,  or  for 
"  money  lent,  paid,  or  had  and  received,  or  for  interest,  or 
"  for  some  other  pre-existing  debt  on  simple  contract,  incurred 
"  at  the  defendant's  request ;  and  that  being  so  indebted,  the 
"  defendant  in  consideration  thereof  afterwards,  to  wit,  on  the 
"  day  and  year  aforesuid,  at  .-  aforesaid,  in   the   county 

"  aforesuid,  undertook  and  faithfully  promised  the  plaintiff  to 
"  pay  him  the  said  sum  of  money,  when  he,  the  said  defend- 
"  ant,  should  be  thereunto  afterwards  requested." 

The  quantum  meruit  count,  instead  of  stating  that  the  de- 
fendant was  indebted  to  the  plaintiff  in  a  certain  sum  of 
money  for  work,  &c.  as  in  the  indebitatus  count,  states,  ''  and 
*'  whereas  also  afterwards,  to  wit,  on,  &c.  aforesaid,  at,  8cc. 
"  aforesaid,  in  consideration  that  the  plaintiff,  at  the  request 
"  of  the  defendant,  had  sold  and  delivered,  Sec.  {stating  the 
"  subject  matter  of  the  debt  according  to  the  fact ^  and  usually  as 
«  in  the  indebitatus  count)  he  the  said  defendant  undertook  to 
"  pay  the  plaintiff  so  much  money  as  he  therefore  reasonably 
"  deserved  to  have  ;  and  the  count  then  avers,  that  the  plain- 
*'  tiff  deserved  to  have  a  named  sum,  whereof  the   defendant 


(fc)2B.&    P.  118.     3  Esp.    Rep.  bill  of  exchange,   fsc.  preceding  the 

213.     1  New  Rep.  273.   ace.    7  T.  R.  common  counts,  it  is  u.sual  and  proper 

241.  contra.  in  tlie  first  common  count  to  lay. the 

(!)  See  the  form,  vol.  2.  5.  jmd  as  day  alter  the  bill  was  due,  or  other 

to  the  definition  of  the  term  indcbita-  special  c.iuse  of  action  T,as  complete  : 

tits  assumpsit,  sec  ante.  and   in   the   subsequent   counts    and 

(jn)  The  time  and  place   are  not  breach  to  refer  to  the  laet  nientioued 

material  in  the   common  counts,  but  day.      1  Wils.  33. 
vhen  there   is  a  special  count  on  a 


OF  THE  DECLARATION.  335 

"  afterwards,  to  wit,  on,  See.  aforesaid,  at,  Sec.  aforesaid,  had  II.  Its  parts. 

•       »  Fourlhlv,  the 

The  quantum  valebant  count  is,  in  general,  confined  to  the   tion. 
»ale  of  goodn,  and   instead  of  the  cjuantum  meruitf  states,  that 
"  the  defendant  promised  to  pay  so  much  as  the  goods  *vvere  *   335 

"  reasonably  worth  ;"  and  concludes  with  a  corresponding  aver- 
ment, that  they  were  reasonably  worth  a  named  sum,  and  that 
the  dulendant  had  notice  thereof.  In  other  respects  this  count 
is  similar  to  the  quantum  meruit. 

The  account  stated^  alleges,  that  "  the  defendant  on,  &c. 
"  atorcsaid,  at,  Sec.  aforesidd,  accounted  with  the  plaintiff  of 
"  and  concerning  divers  sums  of  money  before  then  due  from 
"  the  defendant  to  the  plainliir,  and  then  in  arrear  and  unpaid, 
<'  and  that  upon  such  accounting,  the  defendant  was  found  to 
"  be  in  arrear  to  the  plaintiff  in  a  named  sum,  and  that  being 
"  so  found  in  arrear  and  indebted,  the  defendant  in  considera- 
"  tion  thereof  undertook  and  faithfully  promised  the  plaintiff  to 
"  pay  him  the  same  on  request." 

Upon  these  counts  the  common  breach  is,  "  Yet  the  said  de- 
"  fendant,  not  regarding  his  said  promises  and  undertakings, 
"  but  contriving,  and  craftily  and  subtly  intending,  to  deceive 
"  and  defraud  the  said  plaintiff  in  that  respect,(?7)  hath  not 
"  (although  often  requested  so  to  do)(o)  as  yet  paid  the  said 
«  sums  of  money,  or  any  part  thereof,  but  hath  wholly  neg- 
"  lected  and  refused,  and  still  neglects  and  refuses  so  to  do, 
"  to  the  plaintiff's  damage  of  a  named  sum,  and  therefore,  he 
"  brings  his  suit,"  Sec.  which  breach  necessarily  varies  in  ac- 
tions by  and  against  surviving  partners,  husband  and  wife,  exe- 
cutors and  assignees,  &c.(/2) 

l-'orinerly    these    general   counts  for  work,  goods  sold.  Sec. 
were  not  in  use  ;  and  Lord  H(.lt  is  stated  *to  have  said,  that  he   -^    ^    307 
was  a  bold  man  who  first  ventured  on  them  ;  but  they  are  now 
much  more  frequent  than  the  special  counts,  where  the  action 
is  for  any  money  demand. (y)     It  is  not  necessary  to  state  the 


(n)  Ante,  Sr.l.  (9)    2  Stra.  9:T3.      1  Saund.  269.  n. 

(o)  The  printed  forms  generally  2.  2  Saund.  12'2.  a.  n.  2.  350.  n.  2.  374. 
contain  a  special  request,  but  tliis  is  n.  1.  Fitzg.  302,  Com.  Dig,  tit.  As- 
unnecessary.     1  Wiis.  3.'i.  sumpsit,  11   3. 

ip)     See   ante,    328.     and   vol    t? 
45  10  70. 


337  OF  THE  DECLARATION. 

If.  Its  partx.  particular  work  done,  or  goods  sold,  Sec.  for  the  only  reaSoYj 
louitlilv,  the  ^yj  ,  jijg  pluiiiiitr  is  bound  to  shew  in  what  respect  the  defend* 
lion-  ant  is  indebted,  is,  that  it  may  appear  to  the  court  that  it  is  not 

a  debt  of  record  or  specialty,  but  only  on  simple  contract ;  and 
any  general  words,  by  which  that  may  appear,  are  sufficient  ;(r) 
and  unnecessary  statements,  such  as  the  local  situation  of  the 
premises  in  a  count  for  use  and  occupation,  should  be  avoided, 
as  a  variance  might  be  fatal. (s)  Several  distinct  debts  or  con-* 
tracts  may  be  included  in  one  count  of  this  description,  and 
the  plaintiflT  will  succeed  firo  tanto^  though  he  only  prove  one 
of  such  contracts. (f)  And  under  an  indebitatun  count  the  plain- 
tiff may  recover  what  may  be  due  to  him,  although  no  specific 
price  or  sum  was  agreed  upon  ;  and,  therefore,  it  has  been 
observed,  that  the  quantum  meruit  and  quantum  valebant  counts 
are  in  no  case  necessary,  and  should  in  many  cases  be  omitted 
to  prevent  unnecessary  prolixity  and  expense  ;(m)  and  it  is  set- 
tled, that  under  a  quantum  meruit  count  the  plaintiff  cannot  re- 
*    338  cover  if  the  *goods   were  sold.  Sec.  at  a  certain  price. (r)     In 

each  of  these  counts,  except  that  for  money  had  and  received, 
and  the  account  stated,  it  is  necessary  to  allege  that  the  con- 
sideration of  the  debt  was  perlornied  at  the  defendant's  request^ 
though  such  request  may  in  some  cases  be  implied  in  evi- 
dence \{x)  and  it  must  also  be  stated  that  the  defendant  promised 
to  pay  a  specific  sum  or  so  much  as  the  plaintiff  reasonably  de- 
served, avei'ring  in  the  latter  case  what  sum  is  due.(2/)  As  the 
common  counts  are  so  useful  in  practice,  it  may  be  advisable 
concisely  to  consider  the  particular  applicability  of  each. 

The  common  counts  relating  to  real  property  are  for  the 
price  of  a  freehold,  copyhold,  or  leasehold  estate,  8cc.  sold  and 
conveyed   to  the  defendant,  where  there  has  been  no  contract 


(r)  2Saund.  350.  ii.'i.  .SrS.     2  Lev.  2i5.      Yelv.  175.      I  Brownl.  Ent.  71. 

l.)o.      CHitli.    '270.      2  Wils.   20.      I  2  Bl.  Rep.  910.     Buub.  262.      tie  a  the 

Mod.  8.     1  Sid.  425.     B:ie.  .\br.   tit.  form,  post,  vol.  2.  43. 

Assum|)sit,    F.         Ld.    Raym.   1429,  (h)  2  Saund.    122.    a.   n.  2.      Sed 

1430.     12  Mod.  511.     By  special  cus-  vide  3  Bl.  Com.  295. 

tfun  even  tlie  cause  of  tlie  debt  need  (n)   1  Stra.  C4S. 

riot  be  shewn.     2  S Ira.  720.    1  Saiind.  (x)    I  Saund.  264.  n.   I.      2  East, 

CS.  n.  2.  500.     2  Stra.  9o3.      3  Burr.  1071.     ^ 

(s)  1  Esp.  Rep.  273.      5  Esp.  Rep.  B.  8c  P.  247. 

31,  .32.     G  E.1- 1,  348.  351 .  (z/)  2  B.  k  T.  321 

(0  2  Sauud.  122.  ii.   2.     Cro.  Jac. 


OF  THE   DECLARATION.  33$ 

under  seal  for  the  payment  of  the  price  ;(z)  and  in  these  counts,  JI.  Its  parts. 

und  in  that  for  use  and  occupdiion  of  land,  Sec.   'which  is  given  FninUii\ ,  the 

cause    ol    ac- 
hy Statute  1 1  Geo.  II.  c.  19.  where  the  demise  was  not  by  deed,)  Uim. 

it  is  not  necessary  to  stale  the  locul  situation  of  the  premises. (a) 
And  if  the  (iemise  were  to  the  defendant,  a  count  in  the  com- 
mon form  is  sufficient,  although  he  did  not  occupy  the  pre- 
mises himself,  but  merely  by  his  under-ttn;int.(ii) 

Where  f^-ojds  have  been  sold  and  actually  delivered  to  the 
defendant,  though  under  a  special  agreement,  it  is  in  general 
sufficient  to  declare  on  the  indebitatus  covmt,  provided  the  con- 
tract was  to  pay  in  money,  and  the  credit  be  expired  ;(c)  but 
where  the  *contract  was  to  pay  for  goods  partly  in  money  and  *   359 

partly  by  the  delivery  of  other  goods  in  exchange, (c)  or  to  pay 
by  accepting  a  bill  of  exchange,  and  the  whole  credit  is  not 
elapsed,  it  is  necessary  to  declare  specially. (ci)  So  on  a  colla- 
teral undertaking  to  p'.y  the  debt  of  a  third  person,  the  contract 
must  be  specially  stated  ;(e)  and  it  is  usual  where  the  defend- 
ant has  refused  to  accept  goods  purchased,  to  declare  special* 
ly  ;{/)  and  at  least  a  count  for  goods  bargained  and  sold  omit- 
ting the  statement  of  the  delivery,  should  be  added,  which  may 
suffice  i(g)  but  where  the  sale  was  to  the  defendant,  and  the 
delivery  to  a  third  person,  at  his  request,  the  statement  that  the 
sale  and  delivery  were  to  the  defendant,  being  according  to  the 
legal  effect,  will  suffice. (A) 

With  respect  to  debts  for  -work  and  labour  or  other  persona! 
services,  it  is  a  rule  that  however  special  the  agreement  was, 
yet  if  it  was  not  under  seal,  and  the  terms  of  it  have  been 
performed  on  the  plaintiff's  part,  and  tlie  remuneration  was  to 
be  in  money,  it  is  not  necessary  lo  declare  specially,  and  the 


(s)  Post,  v(,l.  2.  7,   8.  (O  1  Saiiiiil.  211.  a.   b.     Post,   vol. 

(«)  6  East,  .34S.       I  K-]i.  Rep.  273.  '2.  85. 

1  B.  &  P.  '2i5.  Post,  vril.  -2.  S.  (/)  Post,  vol.  2.  97. 

(6)  8  T.  II.  317.  (^)  1  East,  194.     Peake,  C.  N.  P. 

(c)  1  H.  Bl. '287.     Fitz.2;.  302.   1   R.  4l.       7  T.  11.  67.      Campb.   N.   P. 

k  P.  397.     1  New  Hep.  330.     4  East,  109.     Post,  vol.  2.  17. 

75.  147.  (A)  8  T.   R.  328.      2   Show.  410. 

(c)  1  M  P.:.  287.  B.il!.  N.  P.  136.     1  Stra.  U7.  3  Wils. 

(</)  Ante,  302.  33'J. 

Vol.  I.                                 [  31  ] 


339  ^^'  'A'il^   DECLAUATIOX; 

jf   jt!i  partH.  common  indebitatus  count  is  sufficient. (/)     But  if  the  contract 
Foiiitlily,  tilt-   has  not  been  excculecl  by  tlie  plaintitV.  although  the  defendant 

cause     oi'    iic-  .  i         i       .  •  i  •    ^  ,  i  \ 

lion.  prevented  his  perlormunce,  the  declaration  must  be  special. (A} 

*    340  Where  *the  demand  is  for  wages,  fees,  or  work  and  labour  in  par- 

ticular professions.  Sec  it  is  usual  to  insert  a  count  stating  con- 
cisely the  nature  of  tlie  service,  &c.(/)  iiut  the  common  count 
for  work  and  labour  is  in  general  suflkient.(w) 

Money  lent  to  the  defendant  himself  may  be  recovered  un- 
der the  common  count  for  mojicy  lent,  though  delivered  to 
another  person  at  his  request  ;(«)  but  if  money  be  lent  to  a 
third  person,  at  the  defendant's  request,  and  both  be  liable  to 
repay  the  money,  the  one  on  the  loan,  and  the  other  in  respect 
of  his  collateral  engagement,  which  must  be  in  writing,  the 
count  against  the  latter  must  be  special. (o) 

The  count  for  money  /mid  is  proper  where  money  has  been 
paid  at  the  express  request  of  the  defendant,  and  in  some  cases 
even  without  suoli  re  luesl  ;(/<)  though  the  request  should  al- 
ways be  stated  in  the  pleading. ;f/)  But  where  the  sum  which 
the  plaintiff  has  paid  is  in  the  nature  of  costs,  or  cannot  be  con- 
sidered as  strictly  paid  for  the  use  of  the  defendant  ;(r)  or  where 
the  i)laintiir  has  not  actually  made  a  payment  in  money,  but 
has  merely  been  obliged  to  give  security,  the  declaration  must 
be  special  for  not  indemnifying,  &c.(s) 

.^  Where   money   has  been  received  by  the  defendant  *which 

*   o41  .  .    . 

ex  aquo  et  bono^  ought  to  be  paid  over  to  the  plaintiff,  the  ge- 
neral principle  has  been  that  it  may  be  recovered  by  the  plain- 
tiff, under  the  count  for  money  had  and  received  to  his  use.{t') 
In  general  to  sustain  such   cottnt,  the  defendant  must  actually 


(0  Fitzg.  30-2.     1   Wils.   lir.  Bull.  (o)  1  Suund.  211.  a.  b.     1  Salk.    2S. 

N.  P.  139.     1  B.  kP.   139.     7  T.   U.  Cartli.  4-i6.      2  Wils.   141.     3  Wiis 

181.     4  East,  147.     1  New  Rep.  104.  388.     2  Bl.  Bep.  872.     2  T.  R.  81. 

Id.  3.i5.     fi  East,  5G9.     1   New   Rep.  (/>)  8  T.  R.  310.  614. 

330.     2  B.  k  P.  o'^li.  (7)  1  Saiind.  204.  11.  1. 

(A )  2  East,  145.     1  H.  BI.  287.     4  (r)  5  Esp.  Rep.  3.   4  Esp.  Rep.  223, 

East,  147.     1  New  Rep.  330.  8  T.  R.  tUa     1  T.  R.  201).     7    T.  R 

(0  2  Lev.  153.  CartU.  276.    1  .Mod.  20i.  570.     1  'NMls.  188. 

8.      I  Sid.  425.  (.s)  3  East,  109. 

(wi)  2  Wils.  20.     1  Xew  Rep.  289.  (0  2  T.  R.  370.  2  Buit.  1012.  3  B. 

2  SaiiiKi.  350.  n.  2.  373.  k  P.  IG'J 

(n)  8  T.  R.  3i:8 


OF  THE  DECLARAriON.  34 1 

have  received  money^{u)  though  sometimes,  such  receipt  will   //.  Jta  parti. 
be  uresunied,  till  the  contrary  be  nrovecl.(i^)     in  pieaciing,  the   l-'-^tuihiv  il.ts 

"1  .  cause     of    ac- 

money  must  be  stated  to  have  been  received  to  the  use  ol  the  tion. 
pel-son,  who,  at  the  lime  of  the  receipt,  and  not  merely  at  the 
time  of  the  action,  wus  legally  entitled  to  it.(w)  This  count 
18  sustainable  in  some  cases,  wiiere  money  has  been  received 
tortiously  wi:hout  any  colour  of  contract,  or  under  pretence  of 
a  contract  not  performed  by  the  defendant ;  although  in  general 
a  puny  is  not  at  liberty  to  declare  in  an  action  in  form  ea:  coniraciu. 
where  there  has  been  no  contract  express  or  implied. (r)  'i  lius, 
assignees  of  a  bankrupt  may  declare  lor  money  hud  and  recei- 
ved, against  a  creditor  who  has  levied  his  debt  by 7^'.  fa.  after 
the  act  of  bankruptcy  ;(?/)  but  they  ought  to  declare  in  trover 
for  money  paid  by  way  of  fraudulent  preference,  anterior  to  the 
act  of  bankruptcy  \izi  and  this  rule  is  so  far  qualified  that  the 
courts  will  not  allow  a  colourable  title  to  land,  £cc.  to  be  tried 
under  this  form  of  action,  but  the  plaintitV  must  declare  iu 
tort.(rt) 

•Where  a  payment  has  been  made  on  a  contract  which  has  ^  342 
been  put  an  end  to ;  as  where,  either  by  the  terms  of  the  con- 
tract it  was  iefi  in  the  plaintiff 's  power  to  rescind  it,  and  he 
does  so,  or  where  the  defendant  afterwards  assents  to  its  being 
I'escinded,  this  count  may  be  supported  ;  but  if  the  contract 
continue  open,  as  it  is  technically  termed,  he  can  only  recover 
damages,  and  must  declare  specially  ;(6)  and  where  a  horse  war- 
ranted sound  turns  out  to  be  otherwise,  the  vendee  must  in 
general  sue  on  the  warranty,  and  cannot  maintain  assumlisit  for 
money  had  and  received  to  recover  back  the  price  ;(c)  but 
where  a  term  of  years  is  purchased,  and  tiie  title  turns  out  to 
be  defective,  and  no  conveyance  has  been  made,  the  deposit  is 


(«)  5  Burr.  25S9.  1  East,  3.    Dmg.  2  T.  R.  144.     Bull.  X.  P.  131.     6  T. 

2:3.     4  T.  11.  687.  1{.  695.  68,3. 

(v)  Dou-    1.3S.     4   T.   R.   6sr.     2  (c)  4  T.  R.  21 1 .      1  Bl    Rc^.  lo i. 

T.   U.  370.     1   H.   Bl.  2:59.     4   Esp.  \n)  Cowp.  419.     6   T.    J{.    298.     2 

Ucp.  204.     3    B.  k   l\    yy-i.     I  Eabl,  Stra.  915.     2  II.  Bl.  40S. 

104.     3  East,  171.  (6)    1  T.  R.    133.     3  Lev.  364.     5 

(w)  3  B.  k  V.  46.-;.  East,  449.     1   New  Rep.  351. 

(.r)  Ante,  99.     1  T.  R.  38r».  (c)  7  East,  274.  279.     1  T.  R.  136. 

(y)  2  Bl    liep.   827.     3  ^^■ils.  304.  IH.BI.  19.     3  Esp.  Kep.  84.     4  Esp. 

Rip.  '.'6.    2  Esp.  Rep.  6,)V. 


342  OF  THE  DECLARATION. 

IT.   Its  parts,   recoverable  under  the  common  count  \{d)  and  where  some  act 

Fourthly,  the  js  to  jjg  done  by  each  party,  under  a  special  ae:rccmcnt,  and  the 
cause    01    ac-  j  i        j  i  H 

tion,  defendant  by   his  neglect  prevents  the  plaintiff  from  carrying 

the  contract  into  execution,  the  plaintiff  may  recover  back  any 
money  he  has  paid  under  it,  as  received  to  his  use  ;  but  in 
these  cases,  if  the  plaintifi"  has  received  benefit  in  part  from  the 
original  contract,  he  should  declare  special iy.(£'")  Under  this 
count  only  the  sum  really  received  can  be  recovered  without 
interest,  and  therefore  if  the  plaintifi"  proceed  for  interest,  or  for 
expenses  incurred  in  invesiigating  the  title  to  an  estate,  he 
must  declare  specially. (/) 

^  343  ^t  i*^  advisable  in  all  declarations  in  anfiutu/i.^il  *for  the  reco- 

very of  a  money  demand,  excepting  against  an  inl<;nt,  who  can- 
not state  an  account,  to  insert  a  counl  07i  an  account  (ituicd.(g) 
The  acknowledgment  by  the  defendant  that  a  sum  certain  is 
due,  creates  an  implied  promise  to  pay  the  amount,  and  it  is  not 
necessary  to  set  forth  the  subject  matter  of  the  original  debt  ;(//) 
nor  is  the  sum  alleged  to  be'  due  material. (/)  Where  arbitra- 
tors award  a  sum  of  money  to  be  due,  it  may  be  recovered  un- 
d  r  this  count,  unless  the  submission  was  by  bond.(/-)  We 
have  seen  that  in  actions  by  or  against  executors,  administra- 
tors, he.  where  six  years  have  elapsed  since  the  death  of  the 
testator  or  intestate,  &c.  or  if  it  be  on  any  other  account  ma- 
terial for  the  plaintiff'  to  avail  himself  of  a  promise  or  acknow- 
ledgment since  the  death.  &c.  counts  should  be  added  on  pro- 
mises to  or  by  the  executor,  &c.  in  that  character,  for  other- 
ivise  such  promise  or  acknowledgment  cannot  be  given  in 
evidence  ;(/)  and  this  set  of  counts  usually  follows  the  com- 
mon breach  at  the  end  of  the  first  set  of  counts. (wO 


(</)  6  T.  R.  606.     3  B.  k   P.  166.  (h)  2  Moi].  44.     2  T.  R.  4S0. 

Pcake,  120.     5  Burr.  2639.     2  Esp.  («)  2  Saund.  226.  n.  3.     1  Bl.  Rep. 

Rep.  639.  65.     1  Bui-r.  9. 

(c)  1  New  Rep.    260.  351.  354.     5  (k)  1  Esp.  Kcp.  194. 

East,  449.    7  East,  274.  (/)  Ante,  204,  205.     7  T.  R.  182. 

(/)  1  B.  k  P.  306.     2  Sir  W.  B!.  (m)  See  the  forms,  post,  vol.  2.  45 

1078.    4  Esp.  Rep.  223.  to  70. 

(^)  2  Mod.  44.     1  T.  R.  42, 


OF  THE  DECLARATION.  343 

We  have  already  considered   when   the   aciion  of  d,-ht  may  //.  jts  parta. 

be  supported. (rt)     In  fruniine  the  declaration  in  this  action,  the  Fomthly,  t}.e 
'  .  !  .  .  c;iiuc    of    a<?- 

generdl  rc-iuisires  and  quaiiiies  which  have  already  been  point-  ti'.n. 

ed  out  must  be  observed. (6)     The  particular  parts  may  be  con-  I"  ''^^ht. 

sidered  under  the  same  arrangement  as  in  as8u?}i/isit,ic)  and 

most  of  the  rules  to  be  observed  in    *framing  declarations  in         *    344 

that  form  of  action   equally  govern   in   the  action  of  debt,  and 

therefore  it  will  only  be  necessary  to  point  out  the  distinctions. 

The  title  of  the  court  and  term,  and  the  venue^  have  already 
been  considered. (f/)  The  co)!imencement  of  the  declaration  pre- 
ceding the  statement  of  the  cause  of  action,  is  similar  to 
that  in  assum/isU.(^e)  except  in  the  description  of  the  form  of 
actioa ;  and  in  the  common  pleas,  or  when  the  action  is  by 
original,  it  states  that  the  defendant  was  summotuci-,  not  attach- 
ed, to  answer  the  p!ainiifl'.(/}  The  debt  demanded  should  re- 
gularly be  the  aggregate  of  all  the  sums  alleged  to  be  due  in 
the  different  counts  ;  but  a  mistake  in  this  respect  will  not  be 
a  cause  of  demurrer,  nor  is  it  necessary  to  prove  that  the 
debt  amounted  precisely  to  the  sum  stated  to  be  due.'^)  In 
general,  the  declaration  should  be  in  the  debet  and  detintt ;  but 
in  actions  by  and  against  executors  and  administrators,  it  should 
be  in  the  dtiinet  only,  except  in  an  action  upon  a  judgment 
recovered  against  an  executor,  suggesting  a  dwaatavit^  when 
the  d'^bet  and  drthiet  is  proper.(//) 

The  mode  of  stating  the  cause  of  action  varies  as  in  assumji- 
sit  according  to  the  nature  of  the  contract  or  matter  declared 
on  ;  which  we  have  seen  may  be  a  simple  contract,  a  specialty, 
a  record,  or  a  statute  (/)  In  debt  on  nim/Ue  contract^  express 
or  implied,  to  pay  money  in  consideration  of  a  precedent  delvt 
or  duty,  the  subject  matter  of  *lhe  debt  is  to  be  described  pre-  ^    r^  :- 

cisely  as  in  the  common  counls  in   assumjistt  ;(j)  but  in    point 
oi  iovm,  ihe  indebitatus,  dnd  (jua7itu7n  meruil  or  valebant  couxm, 


(a)  Ante,  too  ta  109.  (g)  1  H.  Bl.  249.     A-Uc,  107,  108. 

(6)  Ante,  '248  to  201.  See  ihe  firms,  vol.  2.  141. 

(f)  Ante,  261.  (/;)  Post,    vol.   2.    14I.   n.  f.     Bac, 

(.'/)  Ante,  2f)l  to  285.  Abr.  Debt,  F.    3  East,  i.     Com.  Dig. 

(f-)  A.itP,  2S5  to  292.  Pleader,  2.  W.  8. 

(/)    Ante,  288.  Post,  vol.  2.  141.  (/)  Ante,  101  to  105. 

.\uiJ  see  the  forms.  Sheet  of/onm.  (./)  Sec  the  cases,  Com.  Di;^.  Plead- 
er, 2.  W.  11. 


345  OF  THE  DECLARATION. 

21.  Its  pcfrts.  differ  from  those  \n  assumpsit.  The  indebitatus  count  states, 
ri"**'''^'  "'*"  ^^^t  the  defendcint  on,  8:c  at,  Uc.  was  indebted  to  the  plaintiff 
*^'"»-  in  a  named  sum  of  money  for  goods  sold,  or  for  work  and  labour, 

8cc.  precisely  as  in  assumfisit  ;  and  it  is  not  necessary  to  set 
forth  the  nature  of  the  debt  with  more  precision  than  in  that  ac- 
tion ;(^")  but  in  this  indebitatus  count,  no  promise  is  staled  as  in 
assumpsit ;(/)  and  though  it  has  been  usual  to  conclude  each 
count  with  the  allegation,  "  that  by  reason  of  the  said  sum  of 
"  money  being  unpaid,  an  action  had  accrued  to  the  plaintiff  to 
"  demand  and  have  the  same  from  the  defendant,  being  parcel  of 
"  the  money  above  dtmunded,"  yet  that  allegation  is  unneces- 
sary, and  the  usual  breach  at  the  end  of  the  declaration  will 
suffice  \{m)  and  the  distinction  is  stated  to  be,  that  whenever 
the  debt  arises  merely  by  the  judgment  or  obligation,  Sec.  and 
not  from  any  thing  dehors,  a  non-performance  of  the  obligation 
is  to  be  laid,  and  the  conclusion  is  to  be  with  the  breach  ad  dant' 
num  ;  but  that  where  the  debt  arises  not  by  the  obligation  alone, 
but  also  by  some  matter  dehors  stated  in  the  declaration,  there 
the  count  should  conclude  per  quod  actio  accrevit,  Ecc.  as  in  debt 
on  a  lease  for  rent.(w)  The  quantum  meruit  and  quantum  i-ale-i 
bant  counts  resemble  those  in  assumpsit,  except  that  the  words 
^  ^  .-  "  agree  to  pay,"  arc  usually  inserted,  *instead  of"  promise  to 
«  pay  ;"  and  that  such  counts  in  general  conclude  with  the  same 
allegation  per  quod  actio  accrevit.  See.  as  the  indebitatus  count. (") 
The  mode  of  framing  the  declaration  in  debt  on  legal  liabilities, 
on  awards,  and  for  escapes,  Sec  arc  pointed  out  in  the  notes  to 
the  precedents  in  the  second  volume. (o) 

In  debt  upon  a  cpecialtrj,  the  declaration  usually  proceeds  im- 
mediately from  the  commencement  to  the  statement  of  the  de- 
fendant's contract,  A\ithoHt  any  intermediate  inducement  or 
statement  of  the  consideration  upon  which  the  contract  was 
founded  ;(/>)  for  in  general  the  circumstances  under  which  the 
deed  was  made  are  immaterial,  and  a  consideration  is   seldom 


{fc)  2  T.  R.  2!;.     Post,  vol.  2.  142.  (n)  Post,   vol.   2.   142,    143.     G?l!> 

n.  !.  Debt,  414. 

(0  W.  ibid.     12  Mod.  51 1.  (o)  Post,  vol.  2.  145  to  151.     Ante, 

(7»)  Post,  vol.  2.  142.   144.  iu  the  102.     Sec  also  Com.  Dig.  Pitadei-,  2. 

notes.     Gilb.  Debt,  414.  W.  11. 

(n)  Gill).  Debt,  415.  (//)    See    the    cases.    Com.    iJigi 

Pleader,  2.  W.  9. 


OF  THE  DECLARATION.  34G 

essential,  or  at  least  it  is  to  be  presumed.(i7)     It  is  principally  if  I^^  P'^^^-^- 
on  this  account  that  the  declaration  in  debt  or  covenant  on  a  ^"^^^^  ^-^^  .^^__ 
specialty  differs  from  that  in  assum/isit.      Thus  in  debt  upon  a  t'«n- 
bond,  the  declaration  states  "  that  the  defendant  on,  ikc.  at,  Sec. 
"  by  his  certain   writing  obliijuiory,  sealed  with  his   seal,  and 
"  now  shewn  to  the  court  here,  acknowledged  himself  to  be  held 

"  and  firmly  bound  to  the  plaintiff  in  the  sum  of /.  to  be 

«  paid  to  the  plaintiff,"  and  then  states  the  breach  in  the  non- 
payment of  that  sum.  So  in  debt  or  covenant  upon  a  lease  by 
the  lessor  against  the  lessee,  it  is  not  necessary  to  set  forth  the 
lessor's  title  to  the  lands  demised  ;  but  the  declaration  merely 
alleges  "  that  the  plaintiff  on,  Sec.  at.  Sec  by  a  certain  indenture 
"  made  between  him  and  the  defendant,  with  a  profert  thereof, 
"  demised,"  Sec.  *and  in  this  case,  if  the  title  be  unnecessarily  *  347 
set  forth,  it  will  in  general  be  considered  as  an  in)pertinent  alle- 
gation, and  may  be  rejected  as  surplusage.(  r)  But  in  an  action  of 
debt  or  covenant  on  a  lease  at  the  suit  of  the  assignee  of  the  re- 
version, or  of  the  heir  of  the  lessor,  or  by  an  executor  of  a  ter- 
mor for  rent,  which  became  due  after  the  death  of  the  testator, 
the  declaration  must  state  the  title  of  the  lessor  to  the  demised  ' 

premises,  in  order  that  it  may  appear  that  he  had  such  an  estate 
in  the  reversion  as  might  be  legally  vested  in  the  plaintiff  in 
the  character  in  which  he  sues  ;(s)  and  this  even  where  the  es- 
tate of  the  plaintiff  is  derived  fiorathe  king  or  a  corporation. (/) 
Such  title  is  usually  shewn  by  way  of  induceyntnt  preceding  the 
statement  of  the  lease  ;  as  when  the  action  is  at  the  suit  of  an 
heir,  by  alleging  that  the  lessor  was  seised  of  the  premises  in 
his  demesne  as  of  fee  ;(u)  or  when  the  estate  demised  is  copy- 
hold, by  shewing  that  fact,  and  that  the  lessor  was  seized  at  the 
will  of  the  lord,  according  to  the  custom  of  the  manor  ;(z;)  or 
where  the  plaintiff  claims  as  assignee  of  a  term,  or  as  executor 
©f  the  lessor  for  i-ent,  Sec.  due  since  his  death,  by  stating  that 


(9)  Plowd.  308.     7  T.  R.  47-.     4  {t)  1  Saund.  1S7.  n.  1.     The  omis- 

Easl,  200.     I  Foiibl.  347.  sion   of  the  statement  of  the    lessor's 

(r)  I  Sti-a.  23U,  i,'Sl.    1  Sauiid.  233.  title  is  said  to  be  aided  by  verdict.     1 

0.2.  Show.  71. 

(s)  I  Saund.  233.  n.  2.     1  Sir.  230.  (?/)  2  Saund.  361.  4l6.     Post,  vsi. 

-T.  n.  5.3S.     Com.  Dig.  Pleader,  C.  2.  200. 

.)6      r.illi.  l)i  bt,  410  rT>  Po^t,  vol.  2.  205.  2fl7. 


*  348 


547  OF  THE   DECLARATION. 

//.  Its  parU:  the  lessor,  i\i  the  time  of  making  the  lease,  was  possessed  of  the 
iiims'c  oV  ac-  '^6"^isc''  premises  for  the  residue  of  ascertain  term  of  years, 
Scc.(7i')  In  these  cases  *the  lessee  ,and  his  assi.^nee  being 
estopped  by  the  deed  from  denying  the  lessor's  title  generally, 
cannot  plead  nil  habuit,  or  traverse  the  entire  inducement,  l)Ut 
iKlmillin(;-  {^y  Ins  plea  that  the  lessor  had  some  le.tjui  interest  in 
the  premises,  he  may  shew  that  he  w^s  entitled  to  a  diffi  rent 
estate,  and  thereby  in  effect  traverse  the  plaintifl's  derivative 
Utle.(jr) 

The  time  and  place  of  making  the  contract  should  be  stated 
as  in  assumpsit,  and  it  must  in  general  appear  that  such  cou' 
tract -w-x-i  by  rfccrf,  except  in  debt  for  rent  on  a  deniise,  which 
is  the  only  instance  where  a  deed  may  be  adduced  in  evidence 
in  support  of  a  count  not  mentioning  it.(;/)  It  must  also  ap- 
pear that  the  contract  was  undersea/;  but  there  are  some 
technical  words,  such  as  indenture^  deed  or  writing  obligatory^ 
which  of  themselves  import  that  the  instrument  was  sealed, 
and  which  will  suffice  ;(r)  and  the  omission  of  the  statement 
that  the  instrument  was  under  seal,  will  be  aided  if  the  defend- 
ant by  his  plea  admit  that  the  writing  was  sealed.(a)  The  de- 
livery of  the  deed,  though  esseniiul  to  its  validity,  need  not  be 
stated  in  pleading  ;(6)  and  though  dated  on  a  particular  day,  a 
deed  may  be  stated  in  pleading  to  have  been  made  on  another 
day.(c) 

The  Jirofert  in  curiam  of  the   deed,  or  the  excuse  for  the 
omission,  usually  follows  the  statement  of  the  time  and  place 
of  making  the  deed,  and  of  the  parties  thereto,  and  precedes 
^   34y  ^l-^s  statement  *of  the  defendant's   contract. (i/)     Such  /irofert 

is  usually  in  the  following  words  : — >'  which  said  writing  obli- 
"  gatory,  (or  indenture,  &c.1  sealed  with  the  seal  of  the  said 
'■'  defendant,  the  said  plaintiff  now  brings  here  into  court,  the 


(w)  Post,  vol.  2.  21)4.     7  T.  R.  5,38.  (r)  1   Saund.  290.  n.   1.  320.  n.   ,X 

See  the  various  modes  of  stating  <lif-  Com.  Di;j;.  tit.  Fait, 

fci-ent  titles,  and  the  nature   of  the  (a)  Id.  ihid.  Ld.  Raym.  l5o6.  1541. 

estate,  and  how  acquired,  post,  vol.  2.  Cro.  Car.  209. 

199  to  23,1.  {b)  I  Saund.  291.  n.  1. 

(.r)  Post,  vol.  1.  500.  n.  {u).     7  T.  (r)  4  East,  477. 

R.  538,  539.  00   -^^  ^'^  profei-ts  in  general.  See 

Q/)  1  New  Rep.  104.   I  Saund.  270.  Com.  Dig.  Pleader,  O.  P.     X  Saund. 

n.  1,  2.  202.  211.     2  Saund.  297.  n.  1.  9.  u.  1. 


OF  THE  DECLARATION.  349 

'<  date  whereof  is  the  day  and  year  aforesaid  ;"('')  and  the  ex-  ^t  ^'^  v  'ta. 
cuse  for  the  omission  of  2Lfirofcre  being  traversable,  is  to  he  caase''ot"  ao^ 
stated  according  to  the  fact,  as  either  that  the  deed  l.as  been  tiun. 
lost  or  destroyed  by  accident,  or  that  it  is  in  the  possession  of 
the  defendant,  £cc.  and  that  therefore  the  plaintiff  cannot  pro- 
duce the  same  to  the  court. (/)  In  declaiing  upon  a  bill  of 
exchange,  or  other  simple  contract,  no  fircferc  is  made  ;  but  in 
pleading  a  deed  it  is  in  general  necessary,  in  order  that  the 
court  may  judge  of  the  sufficiency  of  the  deed  ;(^)  but  when 
the  deed  operates  under  the  statute  of  uses,  as  a  lease  and  I'C- 
lease,  or  a  covenant  to  stand  seised  to  uses,  a  fi'-ofert  is  unne- 
cessary.(//)  So  in  the  case  of  a  feoffment  ;  because  the  estate 
pusses  by  livery  of  seisin,  and  the  statute  against  frauds  which 
requires  that  the  lively  should  be  accompanied  by  some  instru- 
ment in  writing,  has  not  altered  the  form  of  pleading. (?)  So 
when  the  deed  is  stated  only  as  inducement,(y)  or  where  the 
plaintiff  has  no  right  to  the  posscs^aon  of  it,  or  of  the  counier- 
part,(/C)  *a /iro/t-r/ is  unnecessary  ;  and  it  has  been  held  that  the  4!6    35Q 

assignees  of  a  bankrupt  obligee  need  not  make  a  profert  of  the 
bond  ;(/)  and  an  award,  though  under  seal,  not  being  a  spe- 
cialty, needs  not  be  pleaded  with  a  profirt.{m) 

When  a  profert  or  an  excuse  for  the  omission  was  unneces- 
sary, the  statement  of  it  will  be  considered  as  surplusage,  and 
will  not  entitle  the  defendant  to  oyer.vra)  And  oyer  of  a  pri- 
vate act  of  p-iriiamcnt,  or  of  a  record,  as  of  letters  patent  en- 
rolled in  chancery,  cannot  be  claimed  though  pleaded  with  a 
prqfcrt.[o)  But  where  ix  pr-frrl  or  an  excuse  for  the  want  of 
it  is  necessary,  if  the  plaintiff  profess  to  produce  tb.e  deed 
when  he  is  not  prepared  to  do  so,  the  defendant  is  entitled  to 


(f)  Post,  vol.  2.  151.  15.3.  1P2.  (0  Id.  ibiil.     3T.  R.  15G.     8  T.  R 

(/)  3T.  R.  151.     2  H.    Bl.   259.  573.     I    Saund.   2/6.  1,2.     Potl,  vol. 

Post,  vol.  2.  153.  2.  214.  n.  o. 

(5)    10  f;o.    92.  h.     4  T.  R.  3.-.8.  (,/)  8  T.  R.  573.    Coin.  Dig.  Plead- 

Com.  Dii;.  Pleader,  O.  1.  &c.  where  a  er,  O.  15. 

variety  of  inst:tiiccs  are  collected,  in  {h)  1  S:uiad.  9.  a.  n.  I.    1  Vez.  394, 

■wliich  a  pi-ofert  is  or  is  not  necessary.  (/)  Cro.  Car.  209. 

(h)  S  T.  R.  573.     1  Saiiiul.  9.  n.  1.  (m)  2  Saund.  62.  b.  n.  5. 

1  Vez.  39+.     2  B.   &  P.  3Sr.     2  H.  00  2  Salk.  407. 

RI.  262.     3  T.  R.  150.     Post,  vol.  3.  (o)  1  T,  R.  149     1  Saund.  9.  b  n.  I 
2)8,  :i9. 

Vol.  I.  [  32  ] 


350  OF  THE  DECLARATION. 

II.  Its  parts,   oyer,  and  if  he  plead  von  est  factum^  the  pUuntiff  will  be  non- 
F(irthlr,  the    suited  Oil  l!ie  uial,  as  it  will  not  be  suflititnt  in  such  cuse  t» 

UHiise    ot    ac- 
tion, prove  that  the  deed  was  lost  or  destroyed,  or  in  the  defendant's 

possessioii  ;(/<)  and  therefore,  if  the  plaintiff  be  not  prepared 
to  produce  the  deed  on  oyer  being  claiined,  or  at  the  trial, 
and  bus  inadvertently  pleaded  the  deed  with  a  firoferi^  the  de- 
claration must  be  amended,  and  the  circumstances  to  excuse 
the /J ro/>r/  should  be  statcd.((/)  However,  the  omission  of  a 
fir-.f.ri^  when  necessary,  can  oiily  be  taken  advantage  of  by 
special  denuirrer.(r) 

In  siencrai  the  declaration  procc  ds  immediately  from  the 
*■  351  jiroj'trt  to  the  statement  of  the  defendant's  *contract  witliout 
disciosint^-  the  cor;. sidf  ration  upon  vviiich  it  was  fcunded^  which 
is  not  in  genera!  esst  ntiul  to  the  validity  of  a  deed. (a)  But  in 
pleadini;;  a  conveyance  under  the  statute  of  uses,  it  is  necessary 
to  '^tate  tliat  a  vahuihlc  conNiiier<.aion  was  p;>id,(0  or  that  there 
was  a  g'jod  consideration,  as  in  the  instance  of  a  covcn;.nt  to 
stand  seised  to  uses  mude  in  respect  of  relaticnship,  &c.'.m)  in 
which  cases,  if  the  statement  ot  the  consideration  be  omiited) 
the  declaration  will  be  bid  on  special  demur; er.(-c')  So  when 
an  act  to  be  done  by  the  plaintiff  was  the  consideration  of  the 
defendant's  covenant,  and  constituted  a  condition  piecedcnt,  it 
is  necessary  to  shew  such  consideration  as  well  us  the  perform- 
ance  of  it.C:t^) 

In  statinp;  tlie  contract  by  deed,  cither  in  debt  or  covenant^ 
the  rules  which  we  have  considered  in  the  action  o{  ashwyipaitf 
in  general  apply.  The  defendant's  contract  should  in  strict- 
ness be  set  forth  in  positive  terms,  and  not  with  the  testatum 
exi&tet,  or  that  it  was  witnessed,  &c.  but  this  will  suffice  in  a 
declaration,  though  not  in  a  plea  or  avowry  in  which  the  opera- 
tion of  the  deed  or  instrviment  must  be  expressly  averred,  and 
not  by  way  of  recital  or  argument. (x)     The   deed    must  be 


(»  4  East,  585.      1  Es]).  Rep.  337.  (a')  2  H.  B). '259.  261.    2  Saund.  12. 

Iq)  Ttl.  ibid.     1  Saund.  9.  a.  n.  1.  n.  iiO.     2  Slra.  229.    2  Sand,  on  Uses, 

(/•)  4  &  5  Ann.  c.   10.     Coin.  Dig.  53. 

Pleader,  S.  IT.  (,y)  2  .Saimd.  352.  b.     6  East,   5GS. 

(*)  .\nte,  346.  ST.  R.  590.     Ante,  309  to  319. 

(i)  J'osi,  vol.  2.  218.  n.  a.  (r)  1  Saund.  2r4.  u.  1.     Ld.  Raym- 

(«)  Post,  vol.  2.  217.  1539.    2  Sauad.  319.  ii.  5. 


OF  THE  DECLARATION.  351 

pleaded  accoi'dinj^;  to  its  Icc^al  operation  ;  and  where  a  title  by    jj  /,,  p.^-tif. 
conveyance,  in  which  are  the    words  give,  grant,   release,  con-  F'>'n-tlilv,  the 

.  .  oausf    ol"    ac 

firm,  bari^ian,  sell,  £ic.  is  pleaded,  the  p  trty  should  rely  on  one   Uon. 
of  *those  words,  or  it  least  should  only  adopl  such  of  them  as         *   352 
have  the  same  operation. (i/)     We  have  alrcLidy  seen   that  the 
contract  should  be  set  forlh/eiiher  in  tlie  precise  words,  or  ac- 
cording to  the  legal  eilect,  and  that  no  covenants  or  matter  un- 
connected wirh  the  cause  of  action  should  be  stated.(z) 

After    stating  the   covenants    it  is  usual,  though   unneces- 
sary,   to   refer    to   the    indenture,   and    in    actions   on    leases 
to  state  the  hsuec's    entry   on    the  demised   premises  ;(w)  and 
when  the  action  is  betMeen  the  orii>inal  parties  to  the  contract, 
the  declaration  then  proceeds  immediately  to  the  averments  of 
the  plaintiff' 's  performance  of  the  conditions  precedent  wiien 
necessary,  and    to    the  breach.     But  when   the  declaration  is 
by  or  against  a  person  who  was  a  party  to  the  oiigina!  con- 
tract, and  particularly  in  actions  upon   leases,  tl-e  stutement  of 
the  derivative  title  of  the   plaintiff"  or  the  defendant  precedes 
the  breach.     Thus,  when  an  action  is  brought  by  the  heir  of 
the    lessor,  the  death  of  his  ancestor,  and  the  descent  to  the 
plaintiff'  as  heir,  is  shewn.(A)     And  when  the  plainiifi^  claims 
as  assignee  of  the  reversion,  by  lease  and  release,  or  other  con- 
veyance, &c.  it  must  be  set  forth. (c)     In  an  action  brought  by 
the   assignee  of  a    term,   all   the   mesne  assignments  of  the 
term,  down  to  himself,  should  be  stated  ;  for  he  being  piivy  to 
them,  shall  not  be  allowed  to  plead  generally  that  the  estate  of 
the  *lessee  of  and  in  the  demised  premises  came   to   him   by         *    353 
assignment;  but  when  the  action  is  brought  against  the   as- 
signee of  a  lessee,  such  general  form  of  pleading  is  sufficient, 
because  the   plaintiff"  is  a  stranger  to  the  defendant's  title,  and 
therefore  cantiot  set  it  out   particularly.     It  is  not,  however, 
sufficient  in  the  latter  case  to  allege  that  the  tenements  came  to 
the   defendant   by  assignment  ;  but  it  must  be  shewn  that  he 
is  assignee  of  the  term,  for  otherwise  it  might  be  an   assign- 
ment of  another  estate   than  the    term   of  the  lessee.     The 
usual  form  is,  "  that  all  tiie  said  estate,  right,  title,   and   inle- 


(«/)  2  Saund.  97.  (6)  n.  2.     Co.  Lit.         (a)  E'ost,  vol.  2.  lO."^.  n.  m.  n. 
49.  a.  n.  1.     Willes,  .U9.    6  East,  105.         \b)  Post,  vol.  >.  213. 
(z)  Ante,  S'JS  to  303.  (r)  Post,  vol.  iJ.  219,  &c 


35:i  OF  THE  DECLARATION. 

II.  Its  parts.  "  vest  of  the  said  E  F  (the  lessee)  of,  in;  and  to  the  Said  de- 
Fovn  thiy,  tiie  «  mised  premises  with  the  appurtenances,  afterwards,  to  wit> 
tJon.  "  on,  &c.  at,  See.  atbresaid,  by    assignment  thereof,  then    and 

"  there  duly  made,  came  to  and  vested  in  the  said  defcnd- 
"ant"((r/)  An  heir  may  be  sued,  either  generally  as  heir, 
without  shewing  how  he  became  so,  or  may  be  declared  against 
as  assignee,  upon  a  covenant  running  with  the  land.(e)  And 
an  execuior  may  be  sued  in  the  debet  and  detinet  as  assignee, 
for  rent  which  became  due  after  the  death  of  his  testalor.(y  ) 
The  mode  of  declaring  by  and  against  persons  suing  or  being 
sued,  in  a  derivative  character,  is  pointed  out.  in  the  various 
precedents  in  the  second  volume  .(,§•)  In  some  cases  of  debt 
on  specialty,  it  may  be  necessary  to  aver  the  performance  by 
^   354  the  pk.intilT  of  a  condition  *precedent,  or  that  some  other  cir- 

cumstance has  taken  place  which  entitles  the  plaintifl"  to  the 
payment  of  the  debt ;  but  in  general  the  declaration  proceeds 
at  once  to  the  usual  breach. 

We  have  seen  that  debt  is  the  proper  remedy  on  records,  as 
recognisances  of  bv.il,  statutes  merchantv  recognisances  in  the 
nature  of  a  statute  suiple,  and  on  judgments. (c)  'I'he  validity 
of  these  cannot  in  ple.iding  be  impeached  or  afiected  by  any 
supposed  defect  or  illegality  in  the  transaction  on  which  they 
•were  founded,  nor  can  there  be  any  allegation  aguinst  the  va- 
lidity of  a  record,(<&)  and  consequently  it  is  not  necessary  to 
stale  the  circumstances  or  consideration  on  which  the  record 
■was  founded.  In  debt  upon  a  recognisance  of  bail.,  it  must  be 
stated  with  certainty,  following  the  description  in  the  entry  of 
the  recognisance,  and  should  set  fortii  in  what  court  and  at 
whose  suit,  and  for  what  sum  or  cause  the  defendant  became 
bail  :(c)  and  in  pleading  a  statute  staple,  it  should  be  shewn  to 
have  been  by  writing  obligatory,  or  under  seal.(c/)  Pormerly, 
in   an  action   upon  a  judgment,  it  was  usual  to  set  forth  in  the 


(rf)   1  Saund.    112.   b.    n.  I.     Post,  {(>)  4  East,  311.    2  Lev.  161.  Gilb. 

iOi.  2,  196.  on  U.  &    V.   109.     Cilb.  Debt,    4l'i. 

(e)  1  Salk.  555.     4  T.  R.  75.  Burr.  1007.     3  East,  258. 

(/)  1  Salk.  Sir.  ((■)    I  Wils.  284.     Post,  vol.  2.  \77 

C^)  By  01-  against  an  executor  or  to  ISl.      Ci-m.   Uig.   Pleader,  2.  W. 

iif^miiiistrator,     post,    vol.    2.    158. —  10. 

A.qainst  as  heir  or  devisee,  ibid.  159.  {(I)   Cro.    Car.   363.        Com.   Dig 

161.     On  various  titles,  200  to  233.  Pleader,  2.  W.  10. 

fa)  Ante,  103,  1 04. 


OF  THE  DECLARATION.  354 

declaration  the  whole  of  the  proceedings  in  the  former  suit,   ;/.  Jts  parts. 

but  this  is  no  lonsrer  the  praciice.Cf )  and  it  is  sufficient  to  state  ^'^''''t'''^'  ^^^ 
"  or'  ^  Pause    01    ac- 

shortly,  "  that  heretofore,  to  wit,  in  such  a  term  in   such  a  tion. 
"  court  then   holden  at   Weatminntcr,  &c.  the   plaintiff  by  the 
^consideration  and  judi^mcnl  of  that  *court,  recovered  against         *   355 

♦<  the  defendant  the  sum  of /.  which  was  adjudged  by  the 

♦'  said  court  to  the  plainlift"  for  his  damages  which  he  had  sus- 
"  tained,  as  well  by  reason  of  the  non-performance  by  the  said 
"  defendant  of  certain  promises  and  undertukhigs  made  by  l.i;n 
"  to  the  pluintifT,  as  for  his  costs  and  charges  by  Inm  about  his 
"  suit  in  that  behalf  expended  ;"  or  if  the  judgment  were  iu 
debt,  the  form  varies  accordingly  :  and  this  concise  mode  is 
sufficient  even  in  an  inferior  court  not  of  record  ;  and  il  is  not  • 
necessary  to  set  out  the  cause  of  action,  or  that  thedelendant 
became  indebted  within  the  jurisdiction  of  the  court. (/)  It 
is,  however,  necessary  in  debt  upon  a  judgment  in  the  courts 
at  Westviinster^  to  shew  with  cerluinty  the  term  and  parties, 
and  the  sum  recovered;  audit  is  said,  that  if  the  declaration  be 
on  a  judgment  in  the  Common  Pleas,  it  should  be  stated  before 
what  judges  it  was  recovered  ;(5-)  and  this  is  frequently  ne- 
cessary in  debt  on  a  judgment  in  an  inferior  court,  in  which 
case,  the  names  of  the  suitors  who  were  the  judges  should  be 
stated  ;  but  the  omission  will  be  aided  by  verdict. (A)  Care 
must  be  taken  that  there  be  no  variance  in  the  statement  of 
the  judgm'ent,  which  in  the  case  of  a  record  we  have  already 
seen  is  in  general  fatal  ;0)  thus,  if  there  be  a  judgment  for 
388/.  0*.  \d.  and  debt  be  brought  on  it  as  for  388/.  recovered, 
omitting  the  penny,  it  is  a  variance,  and  cannot  be  cun  d 
by  a  remittitur  of  the  penny .(y)  *In  debt  upon  a  judgment,  ^  IKPx 
or  other  matter  of  record,  unless  when  it  is  stated  as  induce- 
ment, it  is  necessary  after  shewing  the  matter  of  record, 
to  refer  to  it  by  the  firout   jiatet  per  recordum.{k)     But  the 


(e)  I  Wils.318.  (/i)    Id.  il)i(I.     Carlh.  86.     2  East, 

(/)  1  Wil-!.  316.      I  Saund.  92.  n.  36-2. 

2.     Post,    vol.   2.    181,    182.       Com.  (/)  Ante,  .Wfi. 

Dig,  Pkader,  2.  W.  12.       Carth.  8.1,  (  /)  2  Sti-a.  1171.      9  Eaiit,  l.^)'.     1 

86.     Thomp.  Ent.  118      8  T.   U.  127.  Esp.  Rep.  5.56. 

(5-)    Com.  Dig.  Plea.lcr,  2.  W.  12.  (A^  t"''!''  l>t-bt,  412.     Atilles,  127. 

but  see  the   usual  form,  post,  vol.  '2.  in    which   Salk.    565.   referred   tr>   in 

191.  Com.  Dig.  Pleader,  2.  W.  12.  is  cor- 
rected. 


356  OF  THE  DECLARATION. 

//.  Its  parts,  omission  will  be  aided  unless  the  defendant  demur  specially.(/) 

Fourthly,  the  j^  jg  usual  also  to  allege  that  the  iudyrmenf  still  remains  in  full 
cause  ot     ac-  '^  /    .  ' 

tion.  force  and  effect,  and  that  the  plaintiff  has  not  obtained  execu- 

tion or   satisfaction   thereof,  but  this   allegation   is   unneces- 
sary .(m) 

In  debt  on  a  statute  at  the  suit  of  a  party  grieved,  or  by  an 
informer,  where  the  whole  of  the  penalty  is  given  to  him,  the 
commencement  is  the  same  as  in  debt  on  a  contract ;  but  where 
a  part  of  the  penalty  is  given  to  the  informer,  and  the  king,  or 
the  poor  of  tlie  parish,  £cc.  the  commencement  and  other  parts 
of  the  decKiration  usually  state  that  the  plaintiff  sues  (jui  lamf 
See.  though  tiiis  is  not  necessary,  unless  there  has  been  a  con- 
tempt of  the  king.(rt)  In  a  declaration  on  a  public  statute,  it 
is  not  necessary  or  advisable  to  state  the  title  or  year  of  the 
reign  when  the  statute  was  passed,  or  to  recite  any  part  of  the 
act ;  and  if  it  be  luinecessariiy  stated  any  materi.d  variance 
will  be  fatal,  particularly  if  the  declaration  conclude  against  tiie 
form  of  the  statute  a/oresaid.{o)     It  is  material  however  in  all 

*■  357  cases  that  the  *ofIcnce  or  act  cliarged  to  have  been  committed 
or  omitted  by  the  defendant,  appear  to  have  been  within  the 
provision  of  the  statute,  and  all  circumstances  necessary  to  sup- 
port the  action  must  be  alleged,  and  the  conclusion  with  contra. 
formam  statuti  will  not  aid  the  onjission  (/?)  if,  however,  this 
be  stated  in  effect,  it  will  suffice  ;  and  therefore  a  declaration 
for  feloniously  setting  fire  to  two  stacks  of  oats  is  sufficient* 
though  the  words  of  the  act  are  uniawlully  and  maliciously .(y) 
Where  a  person  is  exempt  from  a  penalty  under  certain  cir- 
cumstances by  a  proviso  in  a  statute,  and  not  in  the  body  of  it» 
the  plaintiff  need  not  state  that  the  defendant  is  not  within  the 
exemptions,  for  that  is  merely  matter  of  defence  to  be  shewn 


(0   4  Ann.  c.  16.  .s.  1.  {o)  Ante,  218.    Com.  Dig.  Actiw. 

{m)   I  Saund.  330.  n.  4.     Sell  Tide  on  StnttUe,  H.  I.     2  Saund.  374.  n.  2. 

Com.  Dig.  Pleader,  2.  W.  12.  6  T.  R.  776.     2  East,  341. 

{n)  Com.  Dig.  Action   on    Statute,  {{f)  I  Saund.  135.  n.  3.  1  Salk.  212; 

E.  1.     "T.  R.  152.     1  Sauml.  136.  n.  Com.   Di?.    Action,    Statute,    A.  3. 

1.       2  Saund.    374.    n.     1.       As    to  Pleader,  C.  76. 

pleadings  in  general  on  statutes,  see  (f )  3   VVils.   318.  2  Bl.    Rep.    842. 

Com.  Dig.  Pleader,  C.  76.     Bac.  A  br.  5  East,  244. 
tit.  Statute.      I  Saund,  135.  n.  3.     '2 
Saund.  377.  b.  n.  12. 


OF  THE  DECLARATION.  357 

ty  the  defendant  ;  but  where  the  exception  is  contained  in  the  H-  ■''»  parts. 
enaClin}?  clause,  it  must  be  negatived  in  the  declaration  ;(r)  but  f^u"e  '^'^•'  ^^^ 
in  a  declaruiion  on  the  game  laws,  it  is  not  necessary  to  nega-  tion. 
tive  the  purticuLr  qualifications,   though  it  is  otherwise  in  an 
in  form  at  ion  .(a)     When  an  act  of  parliament  which  has  been  re- 
cently passed,  enacts  that  if  a  p^rty  commit  an  offence  after  a 
named  day,  he  shall  be   liable  to  a  penalty,  it  is  usual  to  aver 
that  the  otVence   was   committed  after  that  day ;    but  when  the 
act  has  been  long  passed,  such  averment  is  not  necessary. (/) 
It  is  usual  also  when  the  particular  statute  limits  the  time 
within  which  the  action  should  be  brought,  to  aver  that  the  of- 
fence was  *committed  within  such  time  ;  but  this  also  doesnot         *   358 
seem  material. (e^) 

Where  the  act  or  omission  was  not  an  offence  at  common 
law,  it  is  necessary  in  all  cases  to  conclude  against  the  form  of 
the  statute  or  statutes,Cf)  or  to  shew  at  least  tliat  the  declara- 
tion is  founded  on  the  statute,  by  introducing  the  words  de  pla- 
€ito  transgreseioncs'et  contcmptus  contra  fortnam  etatuli.(w)  And 
the  words  '*  whereby  and  according  to  the  form  of  the  statute," 
will  not  suffice  when  the  action  is  founded  on  two  stututes.(x) 
In  the  latter  case,  the  conclusion  should  be  agaitist  the  form  of 
the  statutes, (i/)  Where,  however,  a  statute  refers  to  a  former 
act,  and  adopts  and  continues  the  provisions  of  it,  the  declara- 
tion should  conclude  only  against  the  form  of  the  statute  ;U) 
so  where  an  offence  is  prohibited  by  several  statutes,  if  only- 
one  is  the  foundation  of  the  action,  and  the  othere  are  explana- 
tory or  restrictive,  it  is  proper  to  conclude  against  the  form  of 
the  statute  in  the  single  number.^a)  The  omission  of  the 
words  "  against  the  form  of  the  statute,"  or  "  statutes,"  when 
proper  to  be  inserted,  is  fatal  even  after  verdict.(<i>)  In  gene- 
ral, however,  there  is  no  difference  as  to  the  doctrine  of 
amending  4$  common  law,  between  penal  and  other  actions  ;(c) 


(r)  1  T.  R.  144,  145.       1   Ltr.  20.        (2/)  Id.  ibid.     Lutw.2I2.     4  Hawk. 

Com.  \)\^.  Action  Sutute.  71.     Com.  Dig.  Action  Statute,  H. 

(s)  111.  ibid.     1  East,  C39.  (z)  1  Lut-.v.  212.     1  Sauiid.  135.  n. 

(0  1  Sauiid.  3()'J.  n.  5.  3.     2  Sauud.  377.  n.  12.     "  East,  51G, 

(u)  2  Kast,  340.  352.  (a)  Ydv.  1 1  f..     2  Saund.  377.  n.  12. 

(w)  2  Ea>.t,  339.       1  Saund.  134.  n.         {b)  2  Kast,  A33.     VVilles,  599. 

3.     6  East,  140.    "East,  51f.  (c)  I   S:iuiid.  25t>.    d.     1  Stra.  IST. 

(vo)  2  East,  341.  2   Str».    122/     1  Wih.  856.  1    Burr- 

(x)  3  bast,  340  .J02. 


«;ause 
liun 


359*  OF  THE  DECLARATION". 

//.  Its  parts,  and  the  statute  4  Geo.  II.  c.  26.  extends  the  provisions  *of  the 
«;ause  of'  ac-  Statute  of  ji-o/uils  to  peu.il  actions  ;(<?)  and  it  had  before  been 
determined,  tliat  the  32  fleii.  Vlli.  c.  30.  extended  to  penal 
actions. (/)  It  is  usual,  in  addition  to  the  statement  co?i^ra/or- 
fna?n  statuti.,  and  of  the  consequent  forfeiture  of  the  penuhy,  to 
allege  that  "  by  means  of  the  premises,  and  by  force  of  the 
"  statute  in  such  case  made  and  provided,  an  action  hath  ac- 
«  crued  to  the  said  plaintiff  to  dtniand  and  have  the  said  penalty 

«  of /."  &:c.  but  this  appears  unnecessary  ;  and  even  asj 

suniing  it  to  be  requisite,  yet  a  count  for  a  penalty  on  the  sta- 
tute 5  Ann.  statini;;  that  a  defendant  kept  a  snare  to  kill  game, 
"  against  the  form  of  the  statute  in  such  case  made  and  prof 
"  vided,  and  by  reason  whereof,  and  by  force  of  the  statute  in 
"  such  case  made  and  provided,  an  action  has  accrued,"  &c.  is 
sufficient ;  for  the  first  mentioned  statute  refers  to  the  5th  Ann. 
c.  14.  creating  the  ofience  and  giving  the  penalty  ;  and  the  last 
mentioned  statute  refers  to  the  2d  Geo.  III.  c.  19.  by  wbic  h  the 
whole  penalty  is  given  to  the  common  informer,  the  half  only 
of  which  had  been  given  to  him  by  an  iatervening  statute  (  g) 

As  the  action  of  debt  is  merely  for  a  money  demand,  the 
breach^  or  cause  of  action  compiained  of,  must  necessarily  pro- 
ceed only  for  the  non-payment  of  the  money  previously  alleged 
to  be  payable  ;  and  such  breach  is  nearly  similar,  whether  the 
action  be  in  debt  or  simple  contract,  specialty,  record,  or  sta- 
tute, and  is  usually  as  follows — ■'■  Yet  the  said  defendant,  al- 
"  though  often  requested  so  to  do,  hath  not  as  yet  paid   the 

*   0/-A  "  said  sum  of L{h)  above  demanded,  *or  any  part  thereof, 

"  to  the  plaintiff,  (or  if  (jui  tarn.,  ko.    to  our  said  lord  the  king, 

"  and  to  the  said ,  who  sues  as  aforesaid,)  but  has  hither- 

'<  to  wholly  neglected  and  refused  so  to  do.     To  the  damage 

"  of  the  plaintiff' of /.  and  therefore  he  brings  his  suit," 

&,c.     The  damages  in  debt  are  in  general  merely  nominal,  and 
not  as  in  as-ticmjisit  the  principal  object  of  the  suit,  and  there- 


(r)  ^V'illcs,  noO.  (/;)  Tliis  is  to  be  the  sum  named  in 

( /")  3  Lev.  375.     1    Stra.  13C.     2    the    commencetneiit  of  the  declara- 

Stra.  I2'i7.     Doug.  115.  tion,    being  the  aggregate  of  all  the 

(5' )  7  Eust,  516,  ■         sums  staled  to  be  due  in  the  different 

counts. 


OF  THE   DECLARATION.  360 

fore  a  small  sum,  as  10/.  is  usually  inserted,(z')  and  in  an  action  //.  Its  parts. 

by  a  common  informer,  as  he  is  not  entitled  to  damages,  no  Fouithlv,  tl>e 

damages  should  be  inserted. (y)  i-i""- 


As  the  action  of  covenant  can  in  general  only  be  supported  In  Covenant. 
on  a  deed, (a)  there  is  less  variety  in  the  declarations  in  this 
action  than  in  that  of  debt,  and  therefore  but  few  observations 
will  here  be  necessary,  as  most  of  the  rules  to  be  observed  in 
framing  a  declaration  in  assumpdl  or  debt,  equally  govern  in 
framing  the  declaration  in  this  action. (6)  The  commencemeiit 
of  the  declaration  in  the  King's  Bench,  by  bill,  varies  only  from 
the  form  in  assumfisit  and  debt  in  the  description  of  the  plea  or 
form  of  action,  which  is  "  of  a  plea  of  breach  of  covenant ;" 
but  in  the  King's  Bench  by  original,  and  in  the  Common 
Pleas,  it  states  that  "  the  defendant  was  summoned  to  answer 
"  the  plaintiff"  of  a  plea,  that  he  keep  the  covenant  made  by  him 
"  with  the  plaintiff,  according  to  the  force,  form,  and  *effect  of  *  361 
"  a  certain  indenture  made  between  them,  Sec.  and  thereupon  ^ 

"  the  said  plaintiff",  by  E  F,  his  attorney,  complains,  for  that 
"  whereas,"  &c.  and  this  form  varies  when  the  action  is  by  or 
against  the  assignee  of  the  reversion,  or  an  heir,  &cc.(c)  We 
have  already  seen  that  an  inducement  is  not  in  general  necessary 
in  this  action,  unless  by  or  against  a  person  claiming  or  being 
sued  in  a  derivative  character,  as  at  the  suit  of  the  heir  at  lav.', 
or  of  the  assignee  of  the  lessor  ;(f/)  nor  is  a  consideration  ne- 
cessary to  be  stated,  unless  it  constitute  a  condition  precedent, 
or  unless  a  conveyance  operating  under  the  statute  of  uses  be 
pleaded. ((')  We  have  seen  that  after  stating  the  time  and 
place  of  making  the  deed  and  the  {Kirties  thereto,  a  /irofcrt  of 
the  deed  or  an  excuse  for  the  omission  is  usually  necessary  ;{/) 
and  in   setting  out  the    defendant's    contract^  no  unnecessary 


(«)  Ante,  100.  (c)    Post,  vol.  2.  191. 

(./)  *  Kurr.  20-21.  2490.  {d)  Ante,  546,  547. 

00  .\nte,  lOOtolir.  {e)  Ante,  .3.11. 

(6)  .\s  to  the  action  of  covenant  {f)  Ante,  35f). 
In  general,  sec  ante,  109  to  117. 

Vol.  I.  [  33  ] 


561  OF  THE   DECLARATION. 

II.  Its  parfs.  Tnatter  should  be  suacd,  a  rule  which  particularly  prevails,  and 
FourthI; ,  tlie  should  be  ol>served  in  pruc.ice,  in  declaring  upon  a  lewse  or  a 

Cause     of   ac-  •    •  i  r 

tiwn.  mo!'t;^MC>;e  deed. (5-)     in  declaiing  on  a  lease,  it  is  usual  to  reler 

thereto,  aiid  to  stule  the  lessee's  entry  and  the  plahuiff 's  gene- 
ral peitorniance,  but  these  are  uunecessdry  :(/;)  the  mode  of 
stating  a  derivative  title  or  liability, (/)  and  of  averring  per- 
fonn.:nce  by  the  plaintiff  of  a  conditioh  precedent,  and  the  de- 
fendant's noiice  thcreor  and  his  breach  of  covenant  have  al- 
ready been  consideied.(y)  It  is  usual  after  stating  the  breaches 
of  cuveuc.nt,  to  conclude  by  alleging — "^  And  so  the  said  piam* 
*  362  "  *-iP'  i"  ^"Ct  saiih,  that  the  *Suiu  defendant,  although  often 
"  requested  so  to  C\o^  hath  not  kept  his  sJd  covenant,  but  hath 
"  broken  the  same,"  Sec.  but  this  is  meie  form  and  is  super- 
fluous repetition  ;(A)  damages  being  the  priiu.ipal  object  in  this 
action,  should  be  laid  suluciently  large  to  cover  the  real  de- 
maud. 


In  Actions  in  Actions  in  form,  ex  delicto^  are  case,  trover,  detinue,  re- 
jo'in  ex  ife-  pig^jj-j^  trespass,  and  ejectment ;  the  applicability  of  wliich  re- 
medics  has  aheady  been  considered. (a)  Tlie  particular  mode 
of  flaming  declaration  in  tliesc  actions  is  stated  in  the  prece- 
dents and  notes  in  tiu;  second  voiume  ;  but  tiiere  are  some 
g\7itrul  rules  whicii  it  vviii  be  pr>per  here  to  consider,  and 
wi;ich  relate  principally  to  ihc  fjiafttncnt  j  1st.  t)f  the  7«tt^/er 
or  ch:i!g  ufCected;  2dly.  Of  the  plaintiff's  right  thereto  ;  3d!y. 
Of  the  injury  ;  and,  4thly.  Of  the  damages. 
1  t     St' If  7]'i^ Jiro/icrty  or  thing  affxctcd  should  be  described  with  cer- 

nient  of  rue     tuiuly,  and  in  such  terms  as  are   commonly   used  in  the  law  : 

>«.;««•    or  ,         ,  .        ,  /,x  , 

«/«Mj  afil-ci-     thus  a  way  ought   not  to  be  ciescnuea  as  a  passage  :(o}  and  aB 
'^  ■  the  term  ••  tenement"  includes  incorpoieal  as  well   as  corpo- 

real hereditamenis,  it  ought  noi  to  be  adopted   in   stating   the 
premises  in  ejectment  or  trespass,  wiach  in  general  lies  only 


{g^V<,z\.,  vol.  2.  t92.   n.l.   17G.  n.  f.         (A)  1  Sauiul.   235.   a.    n.   7.     Postj 

(/i)  Post,  vol. -2.  19.1.  vol.  '2.  I(l4. 
\i)  Ante,  352,  .OoS.  («)  Ante,  122  to  193. 

( ;)  Ante,  325.  ixc.     See  the  forms,         (6)  Velv.  163. 
post,  vol.  2.  194.  197. 


OF  THE  DECLARATION.  362 


{or    corporeal    hereditaments.(c)     The  term  "  close"  is  pro-  f^  ^ts  p(-rt.7. 

:\.h\y,  tlie 
e  oV    ac- 

*   563 


pej-,  though   the  land  be  not  hiclosed,  as  it  iinports  in  law  the  ^f'"'"'-''''.'''  ^''^ 


eaiise  ol     aa 
interest  in  the  soil.(f/)     In  actions  for  tiikint^  away  *or  injuring  tiun 

personal  properly,  the  goods  or  cattle  ou!.^ht  to  be  dcs-.  viLied 
Avith  certainty,  staling  the  number  and  value  ;  but  less  certainty 
is  required  in  trover  than  in  detinue,  because  ii!  the  former 
action,  daraa^^es  only  are  rerovtred,  but  in  the  latter,  the  gocds 
themselves :  and  indeed,  it  v/as  the  oliservalioi)  of  Lord  Nurd' 
■ivirkci  that  as  the  plaintiff  niDy,  in  an  action  lor  a  tort,  recover 
if  he  prove  any  part  of  his  rase,  the  docliine  as  to  certainty  in 
the  enumeration  of  the  property,  appears  to  be  of  little  ULility.(e) 
In  trover  and  other  actions,  where  the  plaintiff  is  entiiled  to  re- 
cover, though  he  do  not  prove  the  whole  of  his  allegation,  it  is 
usual  to  state  a  conversion.  Sec.  of  a  larger  quantity  of  goods  than 
Avas  perhaps  really  converted,  so  as  to  afford  greater  latitude  in 
evidence,  avoiding  however  any  unnecessary  description  or  repe- 
tition ;(/)  but  in  other  cases,  and  particularly  in  prescriptions, 
it  is  advisable  not  to  state  a  right  to  more  than  is  sufficient  to 
sustain  the  action  :  thus  in  a  dci  laration  for  disturbance  of  tolls, 
where  the  plainliff 's  market  was  erected  by  charter,  it  is  the 
safest  way  not  to  state  all  the  Avords  used  in  the  charter  respect- 
ing lolls,  stallage,  &c.  but  only  those  which  are  the  suUjcct 
matter  of  contest  ;(,§■)  and  in  claiming  a  right  of  common,  or 
a  w\;y,  &c.  a  more  extensive  right  should  not  be  slated  than  is 
essential  to  the  support  of  the  action  ;(//)  and  though  in  an  ac- 
tion of  trespass  ijiiare  clausuin  J'ng7t,  it  is  frequently  *advisa-  ^:-  36 
blc  to  Slate  the  name  of  the  close  or  its  abuttals,  in  order  to 
avoid  the  necessity  for  a  new  assignment  in  case  the  defendant 
should  plead  libcrum  teneme7ituin  ;  yet  if  there  be  any  doubt  as 
to  the  description,  such  particularity  should  be  avoided. (^') 


(f)  Post,  vol.  2.  394  n.e.     1  East,  (/)    2  Saunil.   74.  b.     Rep.   temp. 

441.     8  Ka.si,  35".      4  .Mod.  4lS.  42.5.  H:;nKv.  !21.   Baiiies,  3.55.       2  M.  Bl. 

2Stia.  SUI.  131.     2  Sauiul.  37'.l.  n.  13. 

((/)  Doc.  k  Stiiil.  50.     7  nasi,  207.  (.")  2  8ftuml.  172.  n.  1. 

^■ill.  Abr.  tit.  Fences.  (/,)    2  H.  Bl.  234.      \  in.  Abr.  Pre- 

(t'')    Ri't).  temp.    Unvflw.     12T.      2  sciii>tio!i,  \\''.     1  V>j>.  Hi-p.  437. 

Hauixl.  74.  b.      Gill>.   L.   k   E.   220.  (/)    Bull.  N.  V.  S9.       Pobt,  vol.  2. 

Post,  vol.  2.  30.5.  and  see  Han.  Eject-  3Sr.  note  n. 


mciit,  125.     Gilb.  Uepleviii,   lo'J. 


364  OF  THE  DECLARATION. 

//.  Tts  parts.  In  rec^'arcl  to  the  jilaintijf  h  right  or  interest  in  the  matter  or 
r'^'u''e''oi''  ac-  ^''"'^  ufTectccl,  it  may  be  inclej)endent  of -any  particuhir  obliga- 
tion, tion  on  the  defendant  ;  or  it  may  be  an  interest  in  the  perform- 
e(!ly.     Slate-  y,.)^g  ijy  ji^g  defendant  of  some  fmrticular  duty?  founded    cither 

meiit    01    the  '  ■' 

plHiiiUtf's  on  contract  I^etween  the  pirties,  or  on  the  obligation  of  law, 
terest,  arising-  out  of  the  defendant's  particular  situation.     Where  the 

law  gives  a  general  right,  as  for  all  persons  to  fish  in  a  public 
navigable  river,  it  is  improper  to  state  such  public  right  or  to 
prescribe,  and  it  will  suffice  to  shew  that  such  a  particular 
place  was  a  public  navigable  river,  and  that  the  defendant  pre- 
vented the  plainiifiT  from  fishing,  &c.(y)  And  whenever  the 
riglst  of  tlie  plaintiff  is  im/dicd  by  law,  as  the  absolute  rights 
of  persons,  it  is  unnecessary  to  state  the  same  ;  as  in  actions 
for  assault  and  battery,  false  imprisonment,  word,  or  libels, 
when  actionable  in  themselves,  and  malicious  prosecutions,  in 
which  it  is  sufficient  to  allege  the  injury,  without  any  induce- 
ment of  the  right  of  personal  security,  &c.  though  it  is  usual 
in  actions  for  slander  to  begin  the  declaration  with  a  statement 
of  the  plaintiff's  good  characler.(^)  But  where  the  law  doc3 
not  imply  the  right  to  the  matter  or  thing  effected,  it  must  be 
^   365  stated  either  generality  or  sfiecially.Q')     *Thus  in  a  declaration 

for  slander,  affecting  a  person  in  the  way  of  his  trade,  the  par- 
ticular trade  must  be  shewn  by  way  of  inducement. (w)  And 
in  an  action  for  an  injury  to  the  relative  rights  of  persons,  the 
relation  of  husband, (^)  or  master,(o)  in  respect  of  which  the 
plaintiff  was  injured,  must  be  stated  :  so  in  actions  for  taking 
away,  detaining  or  injuring  personal  property,  it  must  be  shewn 
that  the  goods,  Sec.  were  the  plaintiff's,  either  by  the  words 
"  of  the  plaintiff,"  or  that  "  he  was  possessed  of  the  gnods,"  &c. 
or  the  omission  will  be  ftital  even  after  verdict,  the  objection 
being  the  want  of  title,  and  not  a  title  defectively  stated  ;(//) 


U)   AViiles,  2C8.      Yin.  Abi-.  Pre-         {o)  Post,  vol.  2.  2Gr,  CfiS. 
scription,  U.     Ld.  Raym.  lOyi.  (/>)  See  the  precedents,  post,  vol, 

(A-)  Post,  vol.  2. '25.5.  n,  o.  2,  270  to  331.  377   to   382.     2  S:iund. 

CO  Com.  Dig.  Pleader,  C.  34.  379.  u.  13.    1  Ld.    llayin.  2.39.    Rep. 

(«?)  1  Saiind.  242.  a.  n.  3.    2  Saund.  temp.  Hardw.  118.     2  Stra.  1023.     2 

307.  n.  1.    2  15.  J<  P.  2S4.     Post,  vol.  Lutw.    1.509.     Com.  Dig.  Pleader,  3. 

%  2.56.  n.  s.  JVr.  9.    Cro.  Jac.  4G.     2  Sidk.  640.     2 

{n)  Post,  vol.  2.  2C5,  266,  Ld.  Raym.  890, 


OF  THE  DECLARATION.  365 

■"\ 

and  where  the  plaintiff's  interest  in  personal  property  is  re-  JT.  It^  partu^ 
versionary,  his  right  must  be  described  accordingly  ;((/)  but  if  ^^^^^'-^^l  ^^ 
the  defendant  by   his  piea  admit  the  plaintiff's  property   the  tion. 
defect  will  be  aided.(r) 

In  actions  of  tres/iass  to  houses,  la7id,  &c.  the  possession  of 
the  plaintiff  ought  to  be  slated,  or  some  words  equivalent,(4') 
as  the  words  "  of  the  plaintiff,"  which  as  possession  is  /iri- 
ma  facie  sufficient  against  a  \\Tong  doer,  will  sufficed/')  In 
ot/ier  personal  actions  for  injuries  to  real  property,  corporeal 
or  incorporeal,  it  was  formerly  usual  to  state  tlie  pluinlifr's 
title  s/icdalh/y  as  that  he  was  (icii;(;d  in  /lis  devieme  as  offte, 
of  a  house,  mill.  Sec.  and  was  entitled  by  prcscrijition,  or 
*grant,    kc.  to  the  right   of  common,  way,  water-course,   or  *    355 

other  right  affected  ■,{!)  but  it  is  now  fully  settled,  that  in  a 
personal  action  against  a  wrong  doer,  for  the  recovery  of  da- 
mages, and  not  the  land  itself,  it  is  sufficient  to  state  in  the 
declaration,  that  the  plaintiff  was  fiosscsstd  of  a  house  or 
land,  &c.  and  that  by  reason  of  such  possession,  he  was  entitled 
to  the  common  of  pasture,  way,  or  other  right,  in  the  exercise 
of  which  he  has  been  disturbed. (a)  And  though  a  distinction 
has  been  taken  between  a  declaration  agaii^st  a  wrong  doer,  arid 
against  the  owner  of  the  soil  ;(v)  and  it  was  thought,  that  in 
the  latter  case  the  plaintiff's  title  by  grant,  &.c.  must  be  spe- 
cially stated,  because  it  might  be  qualified  by  some  condition 
precedent,  the  performance  of  which  ought  to  be  shewn  ;(7y) 
yet  it  appears  sufficient  in  both  cases  to  declare  generally  on 
the  plaintiff's  possession,  though  in  a  /ilea  it  is  necessary  to  state 
the  seisin  in  fee,  and  prescriptive  right  or  grant.(jr)  If,  how- 
ever, the  right  of  common,  way,  or  water-course,  £cc.  be  not  ap- 


(7)  I'ost,  vfil.  2.  SoO.  See   precedents,   post,   vol.   2.  531  to 

00  1  Sifl.  184.  3f)3.     10  Co.  59.  b. 

(ff)  Com.  Dig.  Pleader,  3.  M.  <J.  (r)    See   4   JNIod.   421.     1    Stra.  .S. 

(0   2   Biisitr.  288.      1    East,    244.  AVilles,  dH).     1   Burr.  440.     4T.  H. 

Com.  Dig.  Pleader,  .3.  M.  9.  "IS.     Tidd's  Prac.  4  edit.  38G.    IT. 

(?)    See  the    cases   in    Com.    Di;;^.  IJ.  431. 
Pleader,  C.  34  toC.SS.  2  Snuiid.  11.5.         (vt-)  1  Burr.  443,  444. 
!i.  n.  1.    And  precedents    referred  to         (.r)  3  T.  It.  760.     2  Sannd.   113.  ;i. 

>  Saund.  346.  n   2.  u.  1.  and   cases  there  collected,   and 

(w)  Com.  Dig.  Pleader,  C.  .39.  And  see  the  precedents,   Liitw.   119,    ICO 

tit.  Action,  Case   Disturbance,  B.     2  1  Barnard.  K.  B.  432.    6  Kast,  43S.  n.. 

Saund.  113.  a.  n.  1.     2Saund.  172.  a.  n.  a.     1  Roll.  Rep.  394.  1  Show.  18,  19. 

1.    5T.   R.  766.    ^Viiies,  008.  0.54.     1  o  Lev.  266.     4  T.  R.  719. 
Saund.  346.  n.  2.    6  East,  438.    n.  a. 


566  ®F  THE   DECLARATION. 

//.  Tts  parts,  purtenant  to  the   house,  land,  &:c.  and  the    plaintiff  be   emi- 
Fourthly,  the  ^j^.^i  thej.gto  bv  anrcement  or  license,  the^  alleeation,  *'  bv  rea- 

cause    oi     ac-  j      r> 

lion.  "  son  of  the  possession,"  kc.  would  be  improper. (i/)     *And 

*   00/  where  a  rcvcraioncr  sues  for  an  injury  to  houses,  land,  8cc.  in 

possession  of  his  tenant,  his  interest  must  he  described  accord- 
ingly, though  it  is  bulhcient  to  allege  generally  that  the  lands 
were  in  possession  of  the  third  person,  as  tenant  to  the  plain-: 
tiff,  witlwut  stating  a  seisin  in  fee,  8cc.(2)  In  an  action  on  the 
case  for  obstructing  anciitit  lightfi,  the  declaration  usually  states 
that  the  plaintiff,  at  the  lime  of  committing  the  grievances 
complained  of  was  lawfully  possessed  of  a  messuage,  situate, 
&c.  wherein  there  of  right  were  and  ought  to  be  certain  win- 
dows, through  which  the  light  and  air  ought  to  have  entered 
the  messuage,  and  then  states  the  injury  ;  and  this  is  sufficient 
without  alleging  that  the  windows  were  ancient. (o)  So  if  the 
declaration  be  for  diverting  a  ivater-coui-at  from  the  plaintiff's 
mill,  his  possession  of  the  mill  shouUl  be  concisely  stated,  and 
that  by  reason  thereof^  he  ought  to  have  had  the  use  and  benefit 
of  the  water-course  ;  without  st.iting  that  it  was  an  ancient  mill, 
or  disclosing  the  grounds  upon  wi.ich  the  right  to  the  water  is 
claimed.(d)  And  in  an  aciiou  for  a  disturbance  of  a  right  of 
cc7fU}iojii(c)  or  ivaiu(^d)  or  of  a  seat  in  a  /irw-^e')  the  deciaration 
states  the  possession  of  a  house,  or  land,  &c.  and  t/iat  by  reason 
t /lercof  i\\c  plaintiff  was  eniitkd  to  ti.e  right,  in  the  exercise 
of  which  he  has  been  disiurbed.  The  s;\mre  mode  of  decla- 
ring is  sufficient  ill  actions  for  *disturbance  or  subtraction  of 
?o//s,(y)  /errie&,(g)  and  oJj]ces.{lt)  And  where  a  corporation 
brings  an  action  for  any  due,  it  is  suflicient  to  state  in  a  dcclu' 
radon.,  though  it  is  otherwise  in  a  plea,  that  it  is  an  ancient  bo* 
rough,  and  that  the  btiri'.csses  thereof  are,  and  for  divers  years 


(j/)  4  East,  tor.    6  East,  •i38.   Post,  (c)  Post,  vol.  2.  .Sf)-2. 

YCl.  2.  .354.  n.  o.  (/■)  2  Sauuil.  11.3.  a.  172.   n.   1.     6 

(z)  Post,  vol.  2.  ;).iG.  East,   438.  n.  a.    AVilles,  654.    Owen, 

(«)  Post,  vol.  2.  .331,332.  Ci-o.  Car.  109.    Cro.  .]ac.  43.     Post,  vol.  2.  3r>.3. 

32.5.    iShow.  17,  IS.  (e-)    Wiiks,    508.      2    Suund.    114. 

{b)  Post,  vol.  2.  337.     1  Leon.  247.  172.  n.  1. 

Palm.  2m    3  Lev.  13.3.    4  East,  107.  (/t)  10  Co.    59.  b.     Cro.  Eliz.  ,3.35. 

(c)  See  post,  vol.  2.  354  to  358.     4  8  Weiitw.  Ind.  5.S.  'Slvr^.    Prcc.   345. 

Mod.  418.     1  Sannd.  346.  n.  2.  347.     4  Mod.  422. 

(</)  Post,  vol.  2.  358,  350. 


*  368 


OF  THE  DECLARATION.  368 

have  been,  a  body  politic,  in  tlie  name  of  the  mayor,  See.  with-  IT.  Its  pari». 
out  selling  out  the  name  of  incoi'poi'ation,  or  any  title  to  the  ^',°"'''-''''-.?  V'.^ 
duty ',  for  the  declaration  being  founded  upon  their  possession,  tion. 
there  is  no  necessity  to  state   a  title  to  the  thing. (/)    How- 
ever, thoui^h  it  is  not  necessury  in  these  actions  for  damages 
to  lay  a  title  in  the  declaration  by  grant  or  prescription,  &c.  yet 
the  title  or  consideration  must  be  proved  on  the  trial.(y) 

Where  the  plaintiff's  right  consists  in  an  obligation  on  the 
defendant  to  observe  some  particular  duty^  the  declaration  must 
state  the  nature  of  huch  duty,  which  we  have  seen  may  be  found- 
ed either  on  a  contract  between  the  parties,  or  on  the  obligation 
of  law,  arising  out  of  the  defendant's /iff  r^/cw/wr  character  or  situa- 
tion. When  the  declaration  is  for  the  breach  of  an  express  or 
Implied  coM/racr,  and  proceeds  for  wowyrffva^ce,  the  consideration 
of  the  contract  must  be  stated  either  in  terms  or  in  bub- 
stance.(X-)  jBut  when  it  is  for  a  misfeasance  or  vialfeasance,  no 
consideration  need  be  *stated  ;(/)  and  when  it  is  founded  on  the  ^   ^69 

obligation  of  laivy  unconnected  with  any  contract  between  the 
parlies,  it  is  sufficient  to  state  very  concisely  the  circumstances 
which  gave  rise  to  the  defendant's  particular  duty  or  liability ; 
as  in  actions  against  sherifl's,  carriers,  innkeepers,  8cc.(7;i) 
Where  the  defendant  is  liable  of  common  right,  as  to  repair  a, 
wall  for  preventing  damage  to  his  neighbour,  according  to  the 
maxim  sic  utere  tuo  ut  non  alienum  hedas,  it  was  always  con- 
sickrcd  sufficii.-nt  to  state  that  the  defendant  was  possessed  of  a 
certain  close.  See.  and  that  by  reason  tliereof  he  was  bound  to 
repuir,  8cc.  without  shewing  the  particular  ground  of  the  de- 
fendant's liability  ;(^2)  l)ut  where  a  charge  was  imposed  on 
another  against  common  light,  as  owner  of  the  soil  or  terre- 
tenant,  it  wa:;  formerly  thought  that  the  plaintitT  ought  to  dis- 
close the  particular  grounds  on  which  the  defendant's  liability 


{>■)  t  Saun(1..340.  n.  2.    Owen,  109.  (/)   Id.  ibid.      3  Er»st,  62.      6  East, 

Cio.  .lac.  43.  l-i3.     2  Venlp.  291.     6  332.    2  Ld.  Raym.  909.     Pest,  vol.2. 

EmsI,  438.  2/5. 

(./)  2  Saund.  c.   114.     4  Mod.  421.  (m)    5  T.   R.   149,  150.     1  Saund. 

42i.     1  Samid.  340.  n.  2.  312.  c.  n.  2. 

(^•)  5   T.   U.    143.      3    Wils.   34S.  (u)  6  Mod.  311.      1  Salk.   22.  3G0. 

Post,  vol.  2.  275.  I,d     Haym.    1090.      Pest,  vol.  2.  S.vi. 

3  T.  11.  rcfj. 


369  OF  THE  DECLARATION. 

//.   lis  parts,  was   founded  ;(o)  as  in  an  action  for  not  repairing  a  fence,  ol* 
F<)uit!i!y,  tlu;  for  not  keeping  a  bull  or  a  boar,  &c.(/i)     But  it  is  now  settled 

Cttusc    of    ac-  .  .  . 

tion.  that  there  is  no  foundation  for  this  distinction  ;  and  m  the  case 

cf  Eider  v.  Smith,{y)  where  an  action  was  brought  for  the 
defendant's  not  repairing  a  private  road  leading  through  his 
close,  it  was  held  sufficient  to  allege  that  the  defendant  as  oc- 
cu/iicr  of  the  close,  ought  to  have  repaired  it,  and  Mr.  Justice 

^  370  Bul/cr  stated  the  distinction  to  be  between  *the  case  where  the 
plaintiff'  in  his  declaration  lays  a  charge  on  the  right  of  the  de- 
fendant, and  where  the  defendant  in  his  plea  prescribes  in  right 
of  his  own  estate  ;  in  the  former  case  the  plaintiff  is  presu- 
med to  be  ignorant  of  the  defendant's  estate,  and,  therefore, 
need  not  state  it,  but  in  the  latter  the  defendant  knowing  his 
own  estate,  in  right  of  which  he  claims  a  privilege,  must  set 
it  forth. (r) 

In  an  action  on  the  case,  founded  on  an  express  or  implied 
contract^  as  against  an  attorney,  agent,  carrier,  inn-keeper,  or 
other  bailee,  for  negligence,  &c.  the  declaration  usually  begins 
with  a  statement  of  the  particular  profession,  or  situation  of 
the  defendant,  and  his  consequent  duty  or  liability.(s)  In  an 
action  for  the  breach  of  a  warranty  the  contract  of  sale  is  sta- 
ted ■,{t)  and  in  a  declaration  by  a  landlord  against  his  tenant, 
for  not  cultivating  according  to  good  husbandry,  or  for  not  re- 
pairing, or  for  waste,  &:c.  the  relative  situation  of  tenant  is 
concisely  stated. (t^) 

Declarations  for  non-observance  of  the  general  obligation  of 
law  may  be  either  for  the  consequences  of  the  negligent  dri- 
ving of  carriages,  &c.(t^)  or  navigating  ships,(w)  or  for  not 
removing  a  nuisance  on  the  defendant's  Iand,(-r)  or  against  the 
late  rector  or  vicar,  or  his  executor,  or  administrator,  on  the 
custom  of  the  realm  for  diIapidations,(?y-)  or  against  the  occu- 
pier of  land  for  not  repairing  a  fence  or  the  bank  of  a   river, 

*   ^"^  5cc.(r)  *or  for  not  repairing  a  way  over  his  land,(a)  or  against 


(o)  Ante,  3uG.  (?;)  Post,  vol.  2.  345,  346. 

(/j)   1  Salk.  335,  33G.     4  Mod.  241.  {v)  Post,  vol.  2.  281. 

(9)   3  T.  11.  7G6.       Lutw.  1 19.      4  (w)  Post,  vol.  2.  283, 

T.  K.  718.  (x)  Post,  vol.  2.  331.  &c. 

{)')  -2  Saund.  113.  n.  1.    172.  a.  n.  1.  (  y)  Post,  vol.  2.  346. 

Ante,  3f.G.  (r)  Post,  vol.  2.  348.  340,  341. 

(«)  Post,  V0I..2.  270,  271.  &c.  (a)  ST.  K.  766.     Lutv.  liy. 

(0  Post,  vol.  2.  276. 


OF  THE  DECLARATION.  37I 

(he  proprietor  of  tithes  for  not  taking  them  away. (A)     In  these  IT.  lis  parts. 
cases  it   is  sufficient  to  state  concisely  the  defendant's  posses-  i-'<'i>rilily,  the 

cause    ot    ac« 

sion  of  the  personal  or  real  property,  and  his  consequent  ob-  u-.m. 
ligation,  the  non-observance  of  which  is  complained  of.(c) 

Declarations  for  the  breach  of  a  duty  to  which  the  defend- 
ant  was  subject,  in  respect  of  his  fiarticular  character  or  dtua- 
tioTif  are  against  carriers  or  innkeepers  for  refusing  to  carry 
goods,  or  to  receive  a  guest,  or  for  the  loss  of  goods  ;  or 
against  sheriff's  and  other  public  officers  for  escapes  on 
mesne, (r/)  or  final  process,((»)  or  for  not  arresting  a  debtor  when 
the  defendant  had  an  opportunity,(y  )  for  false  returns,  Sec.  to 
mesne  or  final  process,(§')  for  not  taking  a  replevin -bond,  or 
lor  taking  insufficient  pledges,(A)  or  for  not  assigning  a  bail- 
bond. (?)  In  these  cases  the  particular  situation  of  the  defend- 
ant from  which  his  duty  arises  should  be  concisely  stated. 

Hence  it  appears  that  it  is  seldom  necessary  in  a  declaration 
for  a  tort,  to  state  the  plaintiff's  title  or  the  defendant's  liability 
8/iecially,(j)  and,  therefore,  we  will  postpone  the  consideration  of 
the  manner  in  which  a  right  by  custom,  /irescri/ition,  or  grant, 
(x.c.  should  be  claimed  till  we  examine  the  *structure  of  pleas,  ^  qvo 
in  which  the  title  is  usually  to  be  stated  with  particularity. 

The  consequences  of  a  variance  in  actions  in  form  ex  con- 
tractu, have  already  been  considered,  and  we  have  seen  that 
the  general  rule  is,  that  if  the  whole  of  an  averment  or  alle- 
gation may  be  struck  out  without  destroying  the  plaintiff's 
right  of  action,  it  is  not  necessary  to  prove  it ;  but  that  if  the 
whole  cannot  be  struck  out  without  getting  rid  of  a  part  essen- 
tial to  the  cause  of  action,  then,  though  the  averment  be  more 
particular  than  it  need  have  been,  the  whole  must  be  proved 
or   the    plaintiff  cannot  vecover.(A-)     Thus  where  in  an  action 

(6)  Post,  vol.  2.  350.  (A)  Aiite,  .303  to  308.     2  East,  452. 

(c)  Id.  ibid.  3  B.  k  P.  45S  to  464.       1  Stra.  229  to 

\d)  Post,  vol.  2.  299.  232.       2  siauiid.  206.  n.  22.  207.  n.  24. 

(e)  Id.  303.  In  an  action  on  tlie  case  where  a  bond 

(  /■)  Id.  301.  was  stated  to  liave  been  made  by  Ld- 

(^)  Id.  302,  303.  V.   Gave,    and   that    produced     was 

(A)  Id.  30G.  310.  Gage,  the  court  lield  the  raistake  im- 

(0  Id.  311.  material.     1  Wils.    115,   116.     As  to 

(./)    In  quare  in^pedit,    ayd  other    the   distinction  between  variance  in 

real  actions,  it  is  oilierwise.     Bull.  N.     describing   torts  and  contracts,  see  \ 

P.    12-2.    Con).  Dig.  pi.  S.    1.5.     See     Salk.  11.  in  note".     9  Past,  15" 

the  modes  of  stating  dift'creut  titles, 

post,  vol.  2.  199  to  2J3. 

V'oL.  L.  [  34  ] 


372  OF  THE  DECLARATION. 

II.  lis  parts,   against  a  tenant  for  bad  husbandry  the   declaration  stated  that 
FouiUily,  ilic   tiie  delendaiu  was  tenant  to  the  pluintifl"'s  fatlier,  and  that  the 

ciuise    «i    uc- 

tioji.  lands  descended  to  the  plainiiff  in  tec  ;  and  it  was  proved  that 

the  same  were  devised  to  tiie  plaintiff  in  tail,  the  variance  was 
held  iuiuiuteriai,  and  the  court  said  that  the  true  rule  is,  that 
on  the  general  ibsue  in  an  acvion  on  the  case,  all  material  aver* 
ments  are  denied  and  put  in  issue,  but  nothing  else ;  and  that 
tlie  estate  of  the  plcdntitf  was  not  a  material  averment,  and 
might  have  been  rejected  in  toto  as  surplusage. (/)  And  if  the 
plahniff  unnecessarily  make  a  title  to  common  of  pasture  or  a 
way,  Sec.  it  has  been  decided  that  he  need  not  prove  the  same 

*■    373  '''"^^  ^s   I'^'ii^    stated  in   *his  declaration. (?n)     So  if  the  plaintiff 

prove  a  part  of  his  declaration,  he  will  in  general  be  entitled 
to  recover,  for  there  is  a  material  distinction  between  actions 
upon  contracts  and  on  torts  ;  in  an  action  on  a  contract  the 
plaintiff  must  prove  it  as  laid,  but  upon  a  tort,  which  is  often 
aggravated  witli  many  particulars,  it  is  not  necessary  to  prove 
the  whole  case,  and  though  the  plaintiff  fail  in  many  of  the 
particulars,  yet  if  he  prove  so  much  of  it  as  leaves  him  a 
good  cause  of  action  he  shall  recover.(72)  It  is,  however,  ad- 
visable to  avoid  unnecessary  particularity,  as  where  the  plain- 
tiff' in  an  action  for  a  libel,  declared  that  he  had  duly  taken  the 
degree  of  doctor  of  physic,  it  was  held  that  he  must  prove 
that  he  had  legally  become  physician  ;(o)  so  where  in  an  ac- 
tion for  an  escape,  it  is  unnecessarily  stated  that  the  writ  was 
indorsed  for  bail,  by  virtue  of  an  affidavit  of  debt  affiled  of  re- 
cord, such  affidavit  must  be  produced.(/;)  And  where  by  the 
unnecessary  statenTient  of  a  title  it  appears  that  the  plaintiff 
has  no  cause  of  action,  it  will  be  fatal  :  thus  in  an  action  against 
a  disturber,  in  which  mere  possession  is  a  sufficient  title  for 
the  plaintiff",  yet  if  he  shew  a  title,  and  it  appear  insufficient, 
the  declaration  is  bad.(y)     However,  where  a  title  is  unneces- 


(/)  2  m.  Rep.  840.      2  Rulstr.  288.  (o)   8  T.  It.  308.      And   see  1  Esp 

1  Stra.230.  Com.  Dig.  Pleader,  C.  59.  Hep.  437. 

(«;)     1  Sauud.   346.11.2.     Bull.  N.  (/>)    1  B.  8c   P.  280. 

P.  76.      4  Mod.  422.  424.  ■    2  Buistr.  {q)    1  Saund.   346.  a.  n.  2.     Com 

2S8.     Coin.  Dig.  Pleader,  C.  39.  Dig.    Pleader,    C.   29.      1  Salk.    SCS. 

(re)  Gilb.  C.  L.    k  E.  229.     Rep.  Ld.  Raym.  1230.     4  T.  R.  717.     Sefl 

tenr.v  Hardw.   121.     2  Saund.   74.  b.  vide  4  Mod.  422.     1  Sir  a.  230. 
207.  n.  24.      6  Enst,  434.      1  Salk.  U. 
in  notes.     Sed  vide  1  Esp.  Bep.  437. 


OF  THE  DECLARATION. 


iO 


eavily  stated  by  way  of  in'duccrnent  to  the  action,  it  needs  not  be  //  /^^  parts. 

alleged  precisely  ;  as  in  an  action  on  *the  case  for  a  nuisance,  Fourth!-.,  the 

if  the  plaintiff  allege  that  he  vvas  possessed  for  a  term  of  years,  j),„ 

it  is  sufficient  without  shewing   the  commencement  of  the         ^   374 

term.(r) 

Injuries  ex  delicto  arc  either  committed  with  or  without  oilly.  St;»tc- 
force,(*)  and  are  immediate  or  consequential  ;(?)  they  may  i^ji,,,-. 
also  arise  from  muljeasancey  misfeasance,  or  nonjeasance .(x>) 
In  declarations  in  trespass,  which  lies  only  for  wrongs  imme- 
diate and  committed  with  force,  the  injury  is  stated  without 
any  inducement  of  the  defendant's  motive  or  intent,  or  of  the 
circumstances  under  which  the  injury  was  committed,  and  the 
declaration  immediately  after  the  usual  commencement  in  the 
King's  Bench  runs :     "  I'or  (hat  the   said  defendant,  on   the 

" day  of    •      )  A.  D. ,  ivith  force  and  arms,  &c.  made  an 

"  assault  on  the  said  plaintiff,  to  wit,  at ,  in  the  county  of 

*' ,  and  then  and  there,"  &c,  [describing  the  injury  according 

to  the  facts,  luith  any  special  damage  that  may  have  accrued^  and 
concludi?ig  as  follows  :)  "  and  other  wrongs,  to  the  said  plaintiff, 
*'  then  and  there  did,  against  the  peace  of  our  said  lord  the  king, 

"  and  to  the  damage  of  the  plaintiff  of /.  and  therefore  he 

"  brings  his  suit,"  Scc.(?i)  In  the  Common  Pleas  the  declaration 
varies  in  form,  and  usually  recites  the  supposed  writ.(w)  The 
injury  in  trespass  should  be  stated  directly  and  positively,  and 
not  by  way  of  recital,  and  therefore  *a  declaration  "For  that  ^  _„ 
"  whereas,"  or  "  whcnfore,"  the  defendant  did  the  act  complain- 
ed of,  is  bad  on  special  demurrer,(jr)  and  was  formerly  holden 
to  be  so  in  arrest  of  judgment,  but  now  it  may  be  amended  at 
any  time  before  or  after  judgment  by  a  right  bill,  the  time  of 
filing  which  the  court  will  not  inquire  into  ;(;/)  and  in  the  Coin- 
mon  Pleas,  when  the  supposed  writ  is  recited,  the  mistake  is 

»i 


(r)  Com.  Dig.   Pleader,  C.  43.  (w)  See  the  forms,  post,  vol.  2.  oSff, 

i  Mo(!.4'22.  4'2i.  370,371. 

(s)  Ante,  123.  (.r)  2  Salk.  6.36.  I  Stra.  621.  Andr. 

(0  Ante,  12.';.  282.  Com.  Dig.  Plcailer,  C.  86.  Post, 

{v)  Ante,  1.34.  vol.  2.  307.  n.  r. 

(k)  See  the  fhrras  aiul  notes,  post,         (y)  2  Stra.  1151.  1162, 
^ol.  ?.  307,  308.  571. 


375  OF  THE  DECLARATION. 

II.  Its  parts,  aided,  and  will  not  be  a  ground  even  of  special  demurrer.(2) 

Fouiiiiiv,  tlie   jj^  j^j^g  Statement  of  these  injuries,  the  words   "  with  force  and 

cause   01    ac-  J 

tion.  "  arms,"  or  vi  et  armis^  should  be  adofued^{a)  though  the  only 

mode  of  taking  advantage  of  the  omission  is  a  special  demur- 
rer ;(6)  and  in  the  Common  Pleas,  when  the  words  appear  in 
the  recital  of  the  supposed  writ,  and  not  in  the  count  part,  it  is 
sufficient  ;(f)  and  in  one  case  Lord  Hdt  said  tliat  these  woixls 
might  be  omitted  \{d)  and  there  is  an  express  legislative  pro- 
vision to  this  effect  in  regard  to  indictments.(e)  The  conclur 
sion  of  the  declaration  in  trespass  or  ejectment,  for  these  forci- 
ble injuries  should  also  be  "  contra  pacem  regis  "  though  they 
are  mere  words  of  form  and  not  traversable ;(/)  the  omission 
of  that  allegation  will,  however,  be  aided,  if  not  specially  de- 
*  376  nmrred  *to  ;(/)  and  in  the  Common  Pleas,  if  the  words  appear 
in  the  recital  of  the  supposed  writ,  that  will  suffice.(5') 

In  actions  on  the  case,  when  the  act  or  nonfeasance  complain- 
ed of  was  woX.  firinia  facie  actionable,  it  is  in  general  necessary 
to  state  not  only  the  injury  complained  of,  but  also  the  circum- 
stances under  which  it  was  committed;  as,  that  the  defendant 
ivell  knoiving  the  mischievous  propensity  of  his  dog,  or  having 
been  requested  to  remove  a  nuisance  erected  by  another,  mali ^ 
ciously  or  fraudulently  contriving  and  intending,  Sec.  (stating  a 
bad  intent,  corresponding  witli  the  wrongful  act  complained  of,) 
committrd  or  jicrmitted  the  act  complained  of. 

In  some  actions  the  scienter  being  material,  must  be  alleged 
and  proved  ;  as  in  a  declaration  for  keeping  a  dog  used  to  bite 
mankind  or  sheep,  Scc.(//)  or  for  enticing  away  a  servant  or  ap- 


(r)  1  Wits.  99.  2  Wils.  203.  Andr.  Though  there  is  no  longer  any  judg- 

282.     Barnes,  452.    Com.  Dig.  Plead-  nicnt  tbi-  the  fine,  (sec  1  Salk.  54.     3 

cr,  C.  S6.  Bl.  Com.  118,   119.  398,  399.     2  Sel- 

(a)  Com.  Dig.  Pleader,  3.  M.  7.    1  ^vin's  Prac.  641.     2  Ld.  Raym.  985. 

Sauiul.  81,  82.  n.  1.  140.  n.  4.  A'in.  Abr.  Trespass,  Q.  a.  5.)  yet  Ld. 

(6)  4  k  5  .\nn.  c.  16.  s.  1.  Holt,  in  2  Ld.   ]{ayni.  985.  said,  the 

(c)  Com.  Dig.  Pleader,  3.  M.  7.  words  must  not  be  omitted  ;  see   also 

(t/)   Ld.    Raym.    985.       Vin.  Abr.  the  above  cases  ;  and  yet  in  some  cases 

Trespass,  Q.  a.  5.  ces.wnte  ratione  cessat  et  ipsa  lex,  as 

(t')  37  Hen.  VHL  c.  8.  Crown  Cir.  in  the  case  of  Pledges.     3  T.  R.  isr, 

Comp.  123.     4  Hawk.  P.  C.    55,  56.  2  H.  Bl.  161. 

(  /■)  Cowp.   174.     2  Bl.  Rep.  1058.  (/)  4  k  5  Ann.  c.  16. 

2  Salk.  640,  641.     Com.  Dig.  Pleader,  (5-)  Cora.  Dig.  Pleader,  3.  M.  8. 

3.  M.  8.     Vin.    Abr.   tit.   Contra  Pa-  (A)  Post,  vol.  2.  2S9.  n.  h-  and  C«- 

t'em,    and    tit.    Trespass,    Q.    a.    5.  ses  Ihere  referred  to. 


OF  THE  DECLARATION.  27& 

preniice,(;)  or  for  falsely  representing  a  third  person  fit  to  be  J^-  ^^^  parts. 

trusted,  though  in  the  latter  case  the  word  "  fraudulently"  might  ca^us'e^  cl'  Vt> 

be  sufficient. (^)     But  in  an  action  for  debauching  a  wife  or  ser-  *^'*^"- 

vant,  it  is  not  necessary  to  allege  or  prove  that  the  defendant 

knew  that  the  female  was  the  wife  or  servant  of  the  plaintiff.(/) 

And  in  an  action  upon  an  express  warranty,  the  scienter  need 

not  be  alleged,  nor  if  stated  need  it  be  *proved.(m)  In  a  dccla-         ^    r>-v-^ 

ration  against  the  mere  continuer  of  a  nuisance,  it  is  advisable 

to  state  that  he  was  requested  iovQ,u\o\e\i.{n) 

We  have  already  seen  how  far  the  defendant's  vioiivc  or  in- 
tent afTects  the  form  of  the  action  ;  and  that  in  general,  when 
the  act  occasioning  damages  is  in  itself  unlawful  without  any 
other  extrinsic  circumstance,  the  intent  of  the  wrong  doer  is 
immaterial  in  point  of  law,  though  it  may  enhance  the  dama- 
ges ;(o)  as  observed  by  Lord  Kenyan,  there  is  a  distinction  be- 
tween answering  ci-uililer  et  criminaliter  for  acts  injurious  to 
others  ;  in  the  latter  case  the  maxim  applies,  actus  nonfucit  ream 
7iisi  mens  sit  rea  :  but  it  is  otherwise  in  civil  actions,  where  the 
intent  is  in  general  immaterial  if  the  act  were  injurious  to  ano- 
ther.(/i)  Lord  Ellenborough's  observations  in  the  case  of  the 
King  V.  Phillips. (^(i)  in  regard  to  indictments,  elucidate  this 
doctrine  :  "  If  any  particular  bad  intention  accompanying  the 
"  act,  be  necessary  to  constitute  it  a  crime,  such  intention 
"  should  be  laid  in  the  indictment.  In  many  cases  the  aile- 
".  gation  of  intent  is  merely  a  formal  one  ;  being  no  more  than 
"  the  result  and  inference  Avhich  the  law  draws  from  the  act 
"  itself,  and  which  therefore  requires  no  proof  but  what  the 
"  act  itself  supplies.  But  where  the  act  is  indifferent  in  itself, 
"  the  intent  with  which  it  was  done  then  becomes  material, 
"  and  requires,  as  any  other  substantive  *matter  of  fact  does,  ^   3^^ 

"  specific  allegation   and  proof"     In    an  action   for    the   con- 


(»■)  Post,  vol.  2.  208.  n.  _v.  his  lordsliip,  but  only  in  tlie  oppUca- 

(A)   Post,    vol.    2.   278,  279.  n.  i.  /w/t  of  this  principle  to  the  pai-tieuiai" 

%\  illes.  584.  case.     As  to  the  maieriality  of  a  had 

(/)  Post,  vol.  2.  206.  n.  s.  intent,   see   the   observations   in    the 

(m)  2  East,  446.  Baiiiifs,  &c.   Tewksbuiy  v.  Diston,   6 

(»)  Willes,  583.     Post,  vol.  2  335.  Ea.st,   438.  and  in  the   King  v.  Phil- 

n.  c.  lips,  id.  464. 

(0)  Ante,  129,  130.  (y)    6  East,  4r3,   4/4.      And    see 

(/>)   Per  Kenyon,   Ch.   J.  2  East,  Crown  C.  C.  12C. 

104.    The  other  judges  diftercd  from 


378  OF  THE  DECLARATION. 

II.  Its  paris.  sequences  of  a  public  nuisance,  it  is  not  usual  to  state  any  un.* 
emise^  of'  ac^  ^'"^  intent  on  the  part  of  the  defendant.(r)  So  in  an  action  on 
^o"'  the  case  for  pirating  the  plaintiff's  copyright  in  a  book,  it  is 

sufficient  to  state  that  the  defendant  published  and  sold  the 
spurious  copies,  without  alleging  or  proving  any  intention  on 
the  part  of  the  defendant  to  pirate  the  copyright  or  injure  the 
sale  of  the  plaintiff's  book  ;(&)  and  in  action  on  a  statute,  as  on 
the  black  act  against  the  hunch-ed,  it  is  sufficient  to  follow  the 
words  of  the  act,  and  on  that  particular  statute  it  was  held  un- 
necessary to  state  that  the  stack  of  oats  and  barn  were  unlaw- 
fully and  maliciously  set  on  fire.CO  If,  however,  a  malicious 
or  wrongful  intent  be  unnecessarily  stated,  it  need  not  be  pro- 
ved ;(f)  and  where  there  is  evidence  to  prove  the  allegation, 
it  may  be  advisaljle,  in  aggravation  of  the  damages,  to  state  the 
defendant's  malicious  intent. (m) 

In  stating  the  defendant's  intent  or  motive,  when  necessary, 
the  language,  as  in  all  other  parts  of  pleading,  should  corre- 
spond with  the  real  or  probable  facts  of  the  particular  case.  In 
an  action  for  a  malicious  arrest  for  a  pretended  debt,  it  is  usual 
to  state,  "  that  the  defendant  wrongfully  and  unjustly  contriving 
"  and  intending  to  imprison,  harass,  oppress,  and  injure  the 
"  plaintiff,  falsely  and  maliciously  caused  the  writ  to  be  issued, 
^  379  "  and  the  arrest  made,"  &c.(7y)  and  *iu  a  declaration  for  a  ma- 
licious prosecution  of  a  criminal  charge,  injurious,  as  well  to 
the  character,  as  to  the  lil)erty  of  the  plaintiff,  the  intent  to 
prejudice  the  character  is  also  stated. (x)  So  in  actions  for 
verbal  or  written  slander,  the  malicious  intent  to  injure  the 
plaintiff  in  his  character,  and  if  the  words  relate  to  his  trade, 
in  such  trade,  should  be  stated  ;(i/)  but  where  from  the 
nature  of  the  injury  there  is  no  evidence  that  the  defend- 
ant's motive  was  malice,  as  in  an  action  for  debauching  a 
daughter  or  servant,  that  word  should  be  omitted. (r)  And 
where  the  injury  is  the  breach  of  a  contract  express  or  im- 


(?•)  Post,  vol.  2.  '238,  2.59,  2iO,  2i1.         (;/)  On  same  principle,  as  stated  iu 

(.5)  Campb.  N.  P.  9i-.  98.    Post,  vol.  4  Hawk.  P.  C.  5C>. 
•2.  ;516.  (ty)  Post,  vol.  2.  242.  n.  s. 

(0  2  Bl.  Rep.  842.     Crown.  C.  C.         (j-)  Post,  vol.  2.  2+8.  n.  s. 
126.  (tj)  Post,  vol.  2.  2.5r. 

(r)  2  East,  44C.  (z)  Post,  vol.  2.  20^. 


OF  THE  DECLARATION.  379 

plied ';  as  for  a  false  \Tarranty,  or  against  a  carrier,  bailee,  Sec.  U-  its  parts- 
the  declaration  usually  states  the  deceit  or  breach  of  contract,  pj^*J,"'j!^''|-7  ^^^, 
without  any  allegation  of  inalice.(a)     So  in  actions  against  of-  *on. 
ficers,  &c.  for  the  non-obsei'vance  of  a  public  duty,  (unless 
malice  be  essential,  as  in  an  action  against  a  returning  officer 
of  a  borough   for  refusing  a  vote  at  an  election,  &:c.)(6)  the 
breach  of  duty,  and  intention  to  deceive  or  injure  the  plaintiff, 
are  stated,  without  alleging  any  other  undue  intent,  as  in  an  ac- 
tion against  the  sheriff  for  an  escape,  &cc.(c) 

When  it  is  material  to  shew  an  undue  motive  or  intent  it  is 
seldom  necessary  in  a  civil  action,  to  state  it  in  ter?n3 ;  it 
is  sufficient  if  it  be  substantially  shewn.  Thus  in  an  action 
against  a  returning  officer,  for  refusing  a  vote  at  an  election, 
though  a  bad  intent  is  necessary  to  the  support  of  the  action, 
yet  the  word  wrongfully  intending  *to  deprive  the  plaintiff,  Sic.  *  38^ 
is  sufficiently  indicative  of  a  malicious  intent-Ct/)  So  in  a  decla- 
ration for  slander  though  it  is  usual  to  state  that  the  defendant 
maliciously  published  the  scandal,  yet  the  word  falsely  alone  is 
sffiucient  ;(e)  so  in  an  action  for  harbouring  the  plaintiff's  wife, 
though  the  mere  statement  of  the  harbouring  might  be  insuf- 
ficient, because  it  is  lawful  hi  some  instances  for  the  wife  to 
leave  her  husband,  yet  the  words  unlawfully  and  unjustly  har- 
boured, See.  will  sufficiently  designate  the  defendant's  conduct 
to  have  been  illegal. (/) 

With  regard  to  the  statement  of  the  injury  itself,  it  is  fre- 
quently sufficient  to  describe  it  generally,  without  setting  out  the 
particulars  of  the  defendant's  misconduct ;  thus,  in  an  action  on 
the  case  for  inducing  the  plaintiff's  wife  to  continue  absent,  it 
is  sufficient  to  state  that  the  defendant  unlawfully  and  unjustly 
persuaded,  procured,  and  enticed  the  wife  to  continue  absent,  by 
means  of  which  persuasion  she  did  continue  absent,  8cc.  where 
by  the  plaintiff  lost  her  society  ;  without  setting  forth  the  means 


(a)  Post,  vol.  2.  27Cu  Cn.  275.  8c<>.     And,  as  to  tlie  vinvd  frinultdent- 

(l>)  1  Kast,  555.  56,-,  508.  n.a.  h,  6  tlast,  445.  inc. 

(c)  Post,  vol.  2.  300,  301.  '     (e)  1  Saunrt.  242.  a.  u.  2.  From  tlic 

(d)  I  Kast,  563.  567.  sec  tlie  obser-  want  of  prohablc  cause,  malice  mav 
vat'ioiis  on  the  words  "  nud'tliose,"  bt*,  ant!  most  usuall)'  is,  iinpUed.  1 
«nd  •'  sine  rationabilP^  or  "  probubi-  T.  R.  545. 

'*  U  caiisa."    GUb.  Cas.  L.  k  E.  liK).  (/)  WUles,  584. 


380  «P  THE  DECLARATIOxN'. 

//.  Its  parts,  ©f  persuasion  used  by  the  defen(lant.(5-)     So  in  actions  for  di- 

Fourthlv,  the   vcrdnt?  water  from  a  stream,   or  for  disturbance  of  a  rij^ht  of 

cause    of   ac-  ,    _  _  ... 

fioii.  common,  way,  Ecc.  it  is  sufficient  to  allege  a  diversion  or  dis- 

turbance generally,  without  shewing  the   particular  mode,(//) 

^   381  *unless  in  an  action  against  the  lord,  in  which  case  it  is  said 

that  a  particular  surcharge  ought  to  be  shewn. (e)  And  in  an 
action  on  the  case,  against  a  master,  for  the  negligence  of  his 
servant,  it  has  been  decided  that  the  negligence  may  be  stated 
as  that  of  the  niaster,  without  noticing  the  servant ;  but  as  the 
object  of  pleading  is  to  apprise  the  opposite  party  of  the  facts, 
it  is  more  correct  to  state  them  truly. (/) 

The  mode  of  fi'uuiing  declarations  for  ivritten  and  verbal 
^lander,  is  pointed  out  in  the  precedents  and  notes  in  the  2d 
volumc.(^)  Where  the  slander  is /i777?;a  ya«>  actionable,  as 
for  calling  a  person  directly  a  thief,  or  stating  that  he  was  guilty 
of  /lerjiiry,  Sec.  a  declaration  stating  the  defendant's  malicious 
intent,  and  the  slander  concerning  the  plaintiff  is  sufficient, 
without  any  prefatory  iiiduceinait.  But  where  the  words  do 
not  naturally  and  fier  se  convey  the  meaning  the  plaintiff  would 
wish  to  assign  to  them,  or  are  ambiguous  and  equivocal,  and 
require  explanation,  by  reference  to  some  extrinsic  matter  to 
shew  that  they  were  actionable,  it  must  not  only  be  stated  that 
such  matter  existed,  but  also  that  the  words  were  spoken  of 
iind  concerning  it.(A)  In  such  case/bto-  distinct  positive  alle- 
gations are  in  general  necessary  ;  as  in  a  declaration  for  accu- 
sing a  person  of  having  been  forsivorn  in  an  answer  in  cha7ice- 
rij,(J)  Jirst,  the   fact  of  such     answer  upon  oath  ;    secondly,  a 

*   382  colloquium  or   speaking   *by  the  defendant  of  and  concerning, 

or  with  reference  to  such  answer  ;  thirdly,  the  words  them- 
selves ;  ixu(.\  fourthly,  the  innucutlolhat  the  defendant  meant  by 
those  words  to  impute  perjury  to  the  plaintiff  in  such  his  an- 
swer, and  the  omission  of  the  colloquium  will  not  in  this  case 


(^)   Willes,  5-7.     1  B.   k  P.  ISO.  ( /)  6  T.  R.  659.     1  East,  110. 

L(!.  Uayir..  ^5'Z.     3  Leon.  13.  (  g)  Pajres  255  to  '2f>5. 

(A)  3  iLcftn.  is.     Ld.  Raym.  4.52.  (A)  8  East,  ^-Jl.     Post,  vol.  2.  255 

Com.  D);i-.  Actions  Case  llisturbance,  to  2G5.  in  notes. 

P..     I    Sannil.   34fi.  a.     Po.st,   vol.  2.  (/)  The  term /orswo?'n  is  not  in  it- 

355.  n.  X.  SCO.  n.  r.  self  actionable.     6  T.  R.  691.    8  Ea.st, 

(e)  1  Saui.d.  346.   a.  Post,  vol.  2.  427. 
2r;5.  n.  X.  z. 


OF  THE  DECLARATION.  382 

be  aided  even  by  a  verdict  ;'7)  the  same  rule  in  general  pre-   //.  Jt.i  parts. 

vails  in  regard  to  slander  injurious  to  a  pei-son  in  his  trade,  pro-  Fomthiy,  tUe 

.  cause    oi    ix.- 

fession,  &c.(X')  but  the  general  inducement  of  i^ood  character  or  tion. 

innocence  of  the  particular  charge  is  unnecessary,  because  tiie 
law  presumes  innocence  of  a  crime  till  the  contrary  be  esta- 
blished.(/)  The  slanderous  words  should  be  stated  as  they  were 
Uttered,  and  proof  of  words  spoken  in  the  third  person  will  not 
support  a  count,  for  words  spoken  in  the  second,  and  vice  ver- 
sa ;{m)  nor  will  words  spoken  byway  of  inierrogaiion  support  a 
charge  of  words  spoken  affirmatively/")  However  the  addi- 
tion or  omission  of  a  word  will  not  prejudice,  unless  it  alter  the 
sense  ;(o)  and  the  plaintiff"  need  not  prove  all  tlie  words  luid, 
though  he  must  prove  such  of  them  as  will  be  sufficient  to  sus- 
tain his  action,  and  it  will  not  suffice  to  prove  equivalent  ex-  t 
pressions.(/2)  Where  some  of  the  words  were  not  actionable, 
yet  if  spoken  at  the  same  time  as  the  actionable  words,  they 
may  all  be  stated  in  one  count.  But  if  words  not  actioi>abIe  be 
stated  by  *themselves  in  a  distinct  count,  and  entire  damages  ^  ^p^ 
be  given,  judgment  will  be  arrested  ;(f/)  and  words  not  actiona- 
ble may  be  given  in  evidence  in  aggravation  of  damages  though 
not  stated  in  the  declaration  -fir)  and  it  has  even  been  decided 
that  words  actionable  in  themselves,  though  not  stated  in  the 
pleadings,  may  be  proved  in  order  to  shew  quo  animo,  the  de- 
fendant spoke  the  words  declared  upon.(s)  An  innuendo  "  as  he, 
*'  (meaning  the  said  plaintiff,)"  is  only  explanatory  of  some 
matter  already  expressed,  it  serves  to  apply  the  slander  to  the 
precedent  matter,  but  cannot  add  or  enlarge,  extend  or  change 
the  sense  of  the  previous  words,  and,  as  already  stated,  the 
matter  to  which  it  alludes  must  always  appear  from  the  antece- 


0')  8  East,  430,  431.     Post,  vol.  2.  (/*)  2   F-:ist,   438.      Gilb.   L.    &    E. 

255  to  265.     And   1    Saund.   242.     in  229.     2  Saund.  74.  1>.     1   Salk.  11.  in 

notes.  notes.       Utp.  temp.  Hai-dw.  721 .  305. 

(^-)Post,  vol.  2.  256.  n.(s).  259.  n.(o).  30fi. 

(/)  Ante,  226.      Post,  vol.  2.  255.  n.  (a)  10  Co.  131.  a.     2  Saund.  307.  a. 

{p.)  n.  1.    3  Wiis.  185.     A'in.  Aim  Dama- 

(/n)4T.  R.  217.     RuU.   N.   P.   5.  gcs,  Q. 

Post,  vol.  2.  264.  n.  k.  (r)  Pt-.ike,   C.  N    P.  125.  22.  106 

(7^)  8  T.  ri.  150.  Bull.  K.  P.  7.     3  K,sp.  Rep.  133,  1.34 

(o)   Bull.    N.    P.  6.      Rep.    temp.  (s)  Id.  iliid.  and  the  cases  i-efurrcd 

Hartlw.  305,  306.  to  in  Campb.  N.  P.  48,  49. 


^n 


Vol.  I.  [  35  ] 


S83 


OF  THE   DECLARATION. 


*  384 


77.  Its  parts.  <3cnt  parts-of  the  declaration  ;(0  bvit  when  the  new  niatler  sta- 
rourtlily,  the  ted  in  an  innuendo  is  not  necessary  to  support  the  action,  it  may. 

cause    ot    in;-  .  .  . 

lion.  oe  rejected  as  surplusage. (;< J 

The  statement  of  the  time  of  committing  injjuries  ex  delicto 
is  seldom  material  ;  it  may  be  proved  to  have^^een  committed 
either  on  a  day  anterior  or  subsequent  to  that  s^ted  in  the  de- 
claration •,(v)  and  in  an  action  on  the  case  for  a  tiialicious  pro- 
secution it  is  not  necessary  for  the  plaintiff  to  prove  the  exact 
day  of  his  acquittal  as  laid  in  the  declaration,  so  that  it  appears 
to  have  been  before  the  action  brought,  and  *therefore  a  vari- 
ance between  the  day  laid,  and  the  day  of  trial  mentioned  in  the. 
record  produced  to  prove  the  acquittal,  is  not  material,  the  day 
not  being  laid  in  the  declaration  as  part  of  the  description  of  such 
record  of  acquittal,  but  if  it  had  been  so  laid,  or  if  the  plaintiff  af- 
fect to  stale  the  teste  or  return  of  the  process,  and  misdescribe  itj 
the  mistake  would  be  fatal. (v)  Where  the  injuiy  was  capable  of 
being  committed  on  several  days,  as  in  trespass  to  lands,  it  may 
be  described  as  having  been  committed  on  such  a  day,  and  on 
divers  other  days  and  times  between  that  day  and  the  exhibiting 
of  the  plaintiff's  bill,  or  the  commencement  of  the  suit;  and 
in  such  case  the  first  day  should  be  laid  anterior  to  the  first  in- 
jurious act,  because  the  plaintiff"  would  not  be  permitted  to  give 
in  evidence  repeated  acts  of  trespass,  unless  committed  during 
the  time  laid  in  his  declaration,  though  he  might  recover  as  to 
a  single  trespass  committed  anterior  to  the  first  d&y.{iv)  But 
where  the  act  complained  of  was  single  in  its  nature,  as  an 
assault,  it  would  be  demurrable  to  stale  that  it  was  committed 
on  divers  days  and  timcs.(a) 

The  filace  is  only  material  in  local  actions,  and  where  the 
situation  of  the  land,  houses,  &c.  is  particularly  described,  as  in 
trespass  and  replevin.  In  transitory  actions  we  have  seen  that 
it  may  be  sufficient  in  general,  merely  to  state  that  the  injury 
"vvas  committed  in  the  county  at  large,  though  it  is  advisable  to 


(0  1  Saund.  243.  n.  4.    8  East,  430,  Co.  Lit.  283.  a.     1  Sautid.  24.  n.  I. 

431.     9  East,  95.     Gilb.  L.  &  E.  IIC,  Saund.  295.  n.  2. 
iVr,    .Post,.vol.  ,2.259.  cj.  (i;)  9  East,  157. 

(ii)  9  East,  95.  (vw)  Post,  vol.  2.  367,  368.  n.  (s). 

(r)  Post,  vol.  2.   367,  368.   n.   (.v).         (x)  Id.  ibid.      6  East,  395.  391, 


OF  THE  DECLARATION.  384 

follow  the  usual  course  of  stating  a  town  or  parish,  in  the  coun-  //.  its  parts 

ty  -/y)  and,  'though  the  action  is  local,  yet  it  is  not  necessary  to    I'ouitlily,  the 

cause    ot'   ftc- 
give  a  local  description  to  the  nuisance  in  action  for  diverting  tion. 

the  water  of  a  navigation  ;(z)  a  plaintiff  in  an  such  an  action  may  *    385 

indeed  make  it  necessary  to  prove  the  gravamen  in  a  particular 
place,  by  giving  it  a  sf>ecific  local  situation  ;  as  by  alleging  the 
nuisance  to  be  standing  and  being  at  a  certain  place  particular- 
ly described  ;  but  in  general  such  particularity  is  not  necessary, 
and  ought  to  be  avoided. («)  However  in  trespass  to  land  it  may 
still  be  proper  to  state  the  parish  or  place  where  the  land  is  si- 
tuate •,{b)  and  in  replevin  the  particular  place  where  the  dis- 
tress was  made,  should  be  stated,  and  it  will  not  suffice  merely 
to  name  the  parish. (c) 


In  actions  for  toits,  the  damages  resulting  from  the  injury,   4thl_v.      The 

.  ...  '.,  ,    .  ,  ,.      statement     of 

are  frequently,  and  m  some  cases  necessarily,  stated,  m  addi-  the  damages^, 
lion  to  the  usual  conclusion  of  the  declaration,  ad  damnum,  he. 
Damages  are  termed  general  or  special.  General  damages 
are  such  as  the  law  implies  to  have  accrued  from  the  wrong 
complained  of.  S/iecial  damages  are  such  as  really  took  place, 
and  are  not  implied  by  law,  and  are  either  superadded  to  gene- 
ral damages  arising  from  an  act  injurious  in  itself,  as  where 
some  particular  loss  arises  from  the  uttering  of  slanderous 
words  actionable  in  themselves,  or  are  such  as  arise  from  an 
act  indifferent  and  not  actionable  in  itself  but  injurious  only  in 
its  consequences,  as  where  words  become  actionable  only  by 
reason  of  *special  damage  ensuing.     It  does  not  appear  neces-  *   386 

sary  to  state  the  former  description  of  damages  in  the  declara- 
ration,  because  presumptions  of  law  are  not  in  general  to  be 
pleaded. (c)  Therefore,  though  it  is  usual  in  an  action  on  the 
case  for  calling  the  plaintiff  a  thief,  to  state  that  by  reason  of 
the  speaking  of  the  words  the  plaintiff's  character  was  injured, 
yet  that  statement  appears  unnecessary,  because  it  is  an  intend- 
ment of  law  that  the  plaintiff  was  injured  by  the  speaking  of 
such  words. ((/) 


(t/)  .\nte  279  to  28J.  (c)  Post,  vol.  2.  364. 

(i)  2  Kast,  49".  (c)  Ante,  226. 

((/)  2  East,  502.     Ante,  270  to  285.  00  Sir  W.  Jones,  190.     i  SaunJ, 

(6)  Co.  Lit.  125.  b.  n.  2.  2>o.  b.  n.  5 


386  OF  THE  DECLARATION. 

JI.  Tts  parts.  But  when  the  law  does  not  necessarily  imply  that  the  plain* 
Foui-tlily,  the  till"  sustained  damage  by  the  act  complained  of,  it  is  essential 
tioji.  to  the  vaiidKy  of  the.  declaration  liiat  the  resuitmg  damage 

should  be  shewn  with  particularity ;  as  in  an  action  by  a  mas- 
ter tor  beating-  his  servant,  or  by  a  commoner  for  surcharging 
a  common,  in  which  the  allegations  per  guod  servitium  amisity 
ov  fier  ijuod  firoJiciu7H  comnmniee  aue  habere  non  jiotuit  are  ma- 
teri-al.Ce-)  So  in  an  action  for  words  not  actionable  in  them- 
selves, but  becoming  so  only  in  respect  of  pai'ticular  da» 
mage.(y)  And  whenever  the  damages  sustained  do  not  ne- 
cessarily arise  from  the  act  complained  of,  and  consequently 
are  not  im>,ticd  by  law,  in  order  to  prevent  the  surprise  on  the 
defendant  which  might  otherwise  ensue  on  the  trial,  the  plain- 
tiff must  in  general  state  the  particular  damage  which  he  has 
sustained,  or  he  will  not  be  permitted  to  give  evidence  of  it.(5*) 
*■  387  Thus,  in  an  action  of  trespass  and  false  imprisonment,  *where 
the  plaiiuiff  ofiered  to  give  in  evidence,  that  during  his  impri- 
sonment he  was  stinted  in  his  allowance  of  food,  he  was  not 
permitted  to  do  so  because  that  fact  was  not  stated  in  his  de- 
claration;(//)  and  in  a  similar  action  it  was  held  that  the  plaintiff 
could  not  give  evidence  of  his  health  being  injured,  unless  spe- 
cially stated. (/)  So  in  trespass  for  taking  a  horse,  nothing  can  be 
given  in  evidence  but  what  is  expressed  in  the  declaration, (A-) 
and  if  money  be  paid  in  order  to  regain  possession,  such  pay- 
ment should  be  alleged  as  special  damage. (/)  So  in  an  action 
for  defamation,  whether  the  words  are  actionable  in  themselves 
or  not,  yet  t'ae  pluintifl'  will  not  be  permitted  to  give  evidence 
of  any  pardciiiar  loss  or  injury,  unless  it  be  stated  specially  in 
his  declaration  {m)  If  an  action  be  brought  for  words  not  in 
themselves  actiunable,  and  the  plaintiff  does  not  prove  the  spe- 
cial damage  h.id  in  the  declaraiion,  he  will  be  nonsuited  ;  be- 
cause the  special  damage  is  in  such  case  the  gist  of  the  action  ; 
but  where   the   words  are   of  thenvselves  actionable,  the  jury 


(f)  9  Co.   113.  a.    1  Sauiid.  340.  a.         (A)  I'eake,  C.  N.  P.  46. 
b.  n.  2.     2Ea.^t,  154.  (?)  PeaTvC,  C.  N.  P.  62. 

(/)  1    Sauiid.  £43.  n.  5.     Sir  W.         (k-)    I  Sid.   225.      Yin.   Abr.  Evi- 

Jones,  19G.  dencc,  T.  b.  6.     Holt,  700. 

(_§■)  See  tlie  rule  ia  assumpsit,  ante,         (0  Cowp.  418. 
332.     8  T.  R.  133.  ('»)  I  Saund.  243.  n.-fi. 


or  THE  DECLARATION.  387 

must  find  for  the  plaintifT,  though  no  special  damage  be  pro-  J^-  Its  parts. 

vcd  (»>     Words,  thoueh  actionable  in  themselves,  and  not  sta-  Fomthlv,  the 
vt-u.v/i-/       »  '  o  cause  of    a«- 

ted  in  the  declaraiion,  may,  we  have  seen,  be  given  in  evidence  tiou. 
to  shew  the  malice  of  the  defendant,  but  the  jury  ought  not  to 
give  damages  for  such  words.(o) 

In  trespass,  the  declaration  concludes  "  and  *other  wrongs  *  jS* 
»  to  the  said  plaintiff,  theTi  ami  there  did,  against  the  peace," 
&c.  and  under  this  allegation  of  a/ia  e7iorniia,  some  matter* 
may  be  given  in  evidence  in  aggravation  of  damages,  though 
not  specified  in  any  other  part  of  the  declaration. (//)  Thus,  in 
trespass  for  breaking  and  entering  a  house,  the  plaintiff  may  in 
aggravation  of  damages  give  in  evidence  the  debauching  of  his 
daughter,  or  the  battery  of  his  servants  under  the  general  alle- 
gation alia  enonnia,  Scc.(y)  or  this  matter  may  be  stated. 
sp0ciany,(r)  Ijut  he  cannot  imder  the  alia  enormia  give  in  evi- 
dence the  loss  of  service  or  any  other  matter  which  would  of 
itself  bear  an  action,  for  if  it  would,  it  should  be  stated  spe- 
cially ;  and  therefore  in  trespass  quare  claufiuinf regit,  the  plain- 
tiff would  not  under  the  above  general  allegation  be  permitted 
to  give  evidence  of  the  defendant's  taking  away  a  horse,  Scc.(.s) 
The  particular  damage  in  respect  of  which  the  plaintiff  pro- 
ceeds, must  be  the  legal  and  natural  consequence  of  the  words 
spoken,  and  not  an  illegal  consequence  ;(/)  and  extra  costs  are 
not  recoverable  as  special  damage, (u)  and  therefore  in  an  ac- 
tion for  words  it  is  not  sufficient  special  damage  to  allege  or 
prove  a  mere  wrongful  act  of  a  third  person  induced  by  the 
slander  ;  as  that  tlie  third  person  dismissed  the  plainlift'  from 
his  employ  before  the  end  of  the  time  for  which  he  was  hired  ; 
so  if  in  consequence  of  the  words  spoken  other  persons  after- 
waixis  assembled  *and  seized  the  plaintiff  and  beat  him,  or  if  the  *  339 
plaintiff  sustained  any  damage  in  consequence  of  the  refusal  of 
any  persons  to  peiform  their  lawful  contracts  with  him,  such 
conduct  of  the  third  persons  cannot  be  slated  as  special  damage, 


()i)  I  Saunil.  243.  n.  5.     Dull.  N.  P.  {q)  Td.  ibid.     6  Mod.  127. 

6.     SirW.  Jones,   190.     2  B.  k   P.  (;•)  Id.  ibid. 

284.  Is)  Bull.  X.  P.   89.     Holt,  700. 

(o)  Campb.  N.  P.  Ante,  383.  Sid.  2-25.     2  Salk.  f.4j.     1  Str«.  61. 

(/))  Bull.    N.    P.  80.    Holt,   699,  (0  8  East,  S.    2B.  &P.  289. 

70O.                           t^sm  (k)  Camph.  N.  P.  151, 152. 


SS9  '  OF  THE  DECLARATION. 

//.  Its  parts,  because  it  maybe  compensated  in  actions  brought  by  theplain- 

lourthly,  the  tiffaorainst  them,  and  the  law  supposes  that  in  such  actions  the 

^'ori.  plaintiff  would  receive  a  full  indemnity  ;{u)  but,  if  the  evidence 

will   support  the   allegation,  it   may,  in  some  cases,  be   stated 

that  the  defendant  procured  the  third  person  to  commit  the 

*  '"  injury,  though  such  person  might  also  be  liable  to  an  action.(T:;) 

The  special  damage  must  be  particularized  in  the  declaration, 
in  order  that  the  defendant  may  be  enabled  to  meet  the  charge 
if  it  be  false,  and  if  it  be  not  so  stated  it  cannot  be  given  in  evi- 
dence, and  if  the  action  be  not  sustainable  independently  of  spe- 
cial damage,  the  declaration  would  be  bad  on  demurrer,  or  in 
arrest  of  judgment  ;(w)  and  therefore,  a  declaration  by  a  vic- 
tualler for  calling  his  wife  a  whore,  "  whereby  several  cnstomers 
"  left  his  house,"  without  naming  any  in  particular,  is  too  gene- 
ral, and  no  evidence  of  particular  customers  leaving  the  house, 
will  be  admissible.(x)  So  in  a  declaration  for  slander  of  title 
to  an  estate,  whereby  the  plaintiff  lost  the  sale  of  it,(t/)  or  for 
slandering  a  single  woman,  by  saying  she  was  with  child  and 

*  OQQ  had  miscarried,  *in  consequence  of  which  she  lost  «eTyer«/ suitors, 

&c.  is  insufficient.(z)  But  in  an  action  for  consequential  damages, 
arising  from  slander  imputing  incontinence  to  the  plaintiff,  it  is 
insufficient  to  state  "  that  he  was  employed  to  preach  to  a  dissent- 
♦*  hig  congregation,  at  a  certain  licensed  chapel  situate,  See.  and 
"  that  he  derived  considerable  profit  for  his  preaching  there,  and 
"  that  by  reason  of  the  scamldl,  persons  frequenting  the  chapel  had 
"  refused  to  permit  him  to  preach  there,  and  had  discontinued 
♦'  giving  him  the  profits  which  they  usually  had,  and  otherwise 
"  would  have  given,"  without  saying  who  those  persons  were, 
(}r  by  what  authority  they  excluded  him.(«)  In  stating  the 
damages  care  must  be  taken  tliat  no  part  of  it  appear  to  have 
accrued  after  the  commencement  of  the  action,  though  if  it  be 
laid  under  a  vidtlictl  it  will  be  aided  by  verdict. (<i) 


(jt)  I  East,  1.  3.     2  B.  &c  P.  3S9.  (  y)  Sir  W.  Jones,  196. 

(r)  Fortesc. '211.     1  Mod. '215.  (=)  S  T.   R.   13'2.     1    Sid.    396.     1 

(tf)  1  Siiuml.  243.  n.   5.     See  the  Vent.  4.  S.  C.     Cro.  Jac.  499. 

prece.kiit,  |>ost,  vol  .'2.  '2C1.  n.  y.  8  T.  {a)  8  T.  R.  130. 

K.  132,  133.  (6)  SSaund.  169.  in.b.    Vin.Abr. 

(.r)  Bull  N.  P.  7.     1    Saund.   2:3.  Daniajres,  Q.  R. 
n.  5.     I  Roll,  Abr.  58. 


OF  THE  DECLARATION".  390 

■||pHaving  ascertained  the  mode  of  stating  the  cause  of  action   7/  jts  parts. 
m  general,  the  points  relating  to  several  cowits  in  the  same  Fifthly,  of  se- 
deckration,  are  next  to  be  considered.     The  rules  as  to  the'"*"' '^''""'^^ 
joinder  of  different  ybr;;zs  and  causes  of  action,  have  ah'eady  been 
treated :of,(c)  and  it  is  here  only  necessary  to  inquire  into  the 
statement  of  the  same  cause  of  action  in  different  counts. 

A  declaration  may  consist  of  as  many  counts  as  the  case  re- 
quires, and  the  jury  may  assess  entire  or  distinct  damages  on  all 
the  counts  ;(rf)  and   *it  is  usual,  particularly  in  assum/isit,  debt  *   39X 

on  simple  contract,  and  actions  on  the  case,  to  set  forth  the  plain- 
tiff's cause  of  action  in  various  shapes  in  diffc-rent  counts,  so 
that  if  the  plaintiff  fail  in  the  proof  of  one  count  he  may  suc- 
ceed on  another.(e)  I'he  variations  should  be  substantial,  for 
if  the  different  counts  be  so  similar  that  the  same  evidence 
would  support  each,  the  court  would,  on  application,  refer  it 
to  the  master  for  examination,  and  to  strike  out  the  redundant 
counts,  and  in  grossc  ases,  direct  the  costs  to  be  paid  by  the  at- 
torney :(/)  but  under  the  restriction  of  avoiding  as  much  as 
possible  any  unnecessary  increase  of  tlje  costs,  it  is  advisable, 
when  the  case  will  admit,  to  state  in  various  counts  the  facts 
in  different  ways,  corresponding  with  the  evidence  which  may 
probably  be  adduced,  and  such  counts  are  in  general  progres- 
sively more  brief  and  concise ;  and  this  is  particularly  necessa- 
ry in  special  assumpsits.^  where  there  is  a  doubt  either  as  to 
the  consideration  or  the  terms  of  the  contract,  or  the  mode  in 
which  the  plaintiff  performed  his  part,  or  the  defendant  viola- 
ted his.  Thus  in  a  special  action  oiassu?n/isit,  for  a  breach  of 
promise  of  marriage,  if  the  defendant  promised  to  marry  upon 
a  particular  day,  the  first  count  is  framed  accordingly,  but  for 
fear  the  plaintiff  should  not  be  able  to  prove  such  particiilar 
promise,  it  is  usual  where  the  evidence  may  probably  support 
the  allegations,  *to  add  a  count  to  marry  on  request,  another  to    *   392 


(c)  Ante,  196  to  207".  tice    as   to    striking  out  superfluous 

Id)  Per  Dc  Grey,    C.  J.   3  Wils.  counts    is  so  fully   stated   in   Tidd's 

185.                              '  Prac.  3d  edit.  559.  4th  edit.  552.  that 

(e)  .3  151.  Com.  295.  any   further  obseiTations   upon   tha^ 

(/)  1  New  Rep.  289.    The   prac-  point  are  here  unnecessary.  ' 


392  OF  THE  DECLARATION. 

JI.  lis  parts,  marry  in  a  reasonable  time,  and  another  to  many  generally .(  g^ 
Fifthly,  of  sc-  So  in  declaring  on  a  contract  to  deliver  eoods,  Sec.  sold,  if  the 

vera!  counts.         ... 

Stipulation  was  to  deliver  within  a  specified  time,  iind  at  a  par* 

ticular  place,  the  first  count  is  to  be  adapted  to  such  facts,  and 
the  second  to  deliver  on  request  or  generully.  and  the  third  with* 
in  a  reasonable  time  •,{h)  and  it  is  frequently  advisable  to  declare 
in  different  counts*  the  one  on  an  executory,  the  other  on  an 
executed  consideration,  the  first  to  admit  of  evidence  of  the  de* 
fendant's  stipulation  ut  the  time  of  the  inception  of  the  contract, 
the  other  of  subsequent  admissions  or  promises.  And  we  have 
seen  that  in  an  action  at  the  suit  of  an  executor  or  administra- 
tor, it  is  frequently  necessary  to  add  a  set  of  counts  on  promi- 
ses to  the  plaintiff  in  his  representative  capacity,  in  order  to 
admit  of  evidence  of  a  promise  or  acknowledgment  to  the  pluin- 
tiff  to  take  the  case  out  of  the  statute  of  limitations. (?)  It  is 
proper  also  to  add  such  common  counis  as  may  be  applicable  to 
ahy  part  of  the  phiintiff's  case,(y)  and  after  the  indebitatus 
count  for  work  and  labour,  or  goods  sold,  £cc.  it  is  usual  to 
'd(16.  2.  (juantuvi  meruit  owvalcbant  count,(X-)  though  the  latter 
we  have  seen  may  now  be  considered  as  unnecessary .(/)  In 
tdebt  on  simple  contracts,  legal  liabilities,  and  penal  statutes,  it 
may  frequently  be  advisable  to  vary^th^  statement  of  the 
*  393^  cause  of  action  in  different  *coun^s.  But  in  debt  on  specialties 
and  records,  and  in  covenant,  sts  such  written  evidence  cannot, 
|ft  if  due  care  be  taken,  vary  from  the  statement  in  the  declara- 

tion, one  count  will  in  general  suffice ;  though  in  an  action  op 
a  deed,  of  which  a  profert  or  an  excuse  for  it  may  be  necessa- 
ry, if  it  be  doubtful  whether  the  dei;d  be  in  the  possession  of 
the  defendant  or  be  lost  or  destroyed,  it  may  be  proper  to  de- 
clare in  one  count,  stating  the  deed  to  be  in  the  possession  of 
the  defendant,  and  in  another  that  it  is  lost.(wj) 

In  declarations  for  torts,  several  counts  for  the  same  cause 
of  action  are  also  frequently  advisable,  particularly  in  actions 
for  words,  which  are  usually  stated  in  different  ways,  and  some-   4 

(g)  Post,  vol.  2.  89.  (j)  Ante,  3;33  to  343. 

(A)  Post,  \o\.  2.  09.  '  {fc)  3  Bl.Com.  29.'!. 

0)  Ante,  204,  205.  See  tUc  form^         (0  Ante,  33".     2  Saund.  122.  ». 
post,  vol.  2.  56.  (})i)  i  East,  585.     I  Esp.  Rep.  SS7 


OF  THE  DEGLARATION.  393 

'  5»  itimes  'witli^Jiflerent  innuendoes  so  as  to  meet. the  prohable.evi-  //.  Jts. parts. 

y     dence.fw)     Ii>  uespuss  if  iheie  huYC  been  two  or  more  ussdiilts,  S^W-  ^^  se- 
^    /I  7   Teril    counts. 

itjjs^proper  to  insert  as  many  counts  as  tliere  v.ere  assaults,  in 

■^\  order  to    avoid    the   prolixity    ot  making  a  new  assi:i;nrnent, 

i'    which  mi.^ht  be  necessary  where  there  have  been  more  assaults 

tban  there  are  counls.((/)     So  in  trespass  quare  cLauaum  frct^it, 

if  there  have  been  any  asportation    of  personal  property,  it  is 

usu.d  to  insert  two  counts,  in  the  first  charging  an  injury  to  the 

40'  land  and  takini;   the    ^oods   there,  wuich  is  in  its  nature  local 

9*  and  must  he  proved  as  laid,  and  in  the  secoi;d  declarinfr  mere- 

•*    ly  for  the   asportation  of  the   goods,  which  is  iraasicory.  and 

may  be  supported  thougli  the  takins^  *be  proved  elsewhere. (/•)  b)J^ 

And  where  there  has  been  an  aifiortution  of  person:.!  property 
(which  in  the  case  of  roots,  earth,  or  other  matter  ajfixecl  to 
the  freehold,  must  be  an  actual  carrying  aivaij)  from  the  land 
where  the  same  was  du.aj.  Sec.  and  not  a  mere  conveyance  of 
it  to  another  part  of  the  premises  where  the  same  was  dug,.'"/) 
it  is  expedient  to  insert  the  common  asporlavit  GOunt<(r)  If, 
however,  a  declaration  in  trespass  contain  two  counts,  awd  the 
defendant  plead  not  guilty  to  the  first,  and  suffer  judgment  by 
default  as  to  the  other,  and  on  the  trial  the  plaintiff  only  proves 
one  act  of  trespass,  to  which  the  second  covmt  is  appIicaWe,  lie 
.  -.    i&-not  entitled  to  a  verdict  on  the  first.(.s)  ,.  -      . 

iteo;:-.In  the  adoption  of  several  counts  care  must  be  tak«ij  that 
•«i;. there  be  no  misjoinder.(/)  The  jury  may  indeed  assess  entire 
">■  or  distinct  damages  on  each  of  the  counts.(w)  If  distinct  da- 
mages be  assessed,  judgment  may  he  given  upon  either  of  the 
eounts,  but  if  the  jury  find  e77tire  damages  on  all  the  counts, 
the  judgment  must  be  entire,  in  which  case  if  .one  of  the 
counts  be  insufficient,  judgment  will  be  arrested,  or  a  writ  of 
error  be   sustainable.(v)  and  the  judgment  will  be  arrested  in 


-'  '(n^Past,-vol.  2,2G4.ji.  (A-), .  Inrc-  (r)   Hultnck,  7-\  to  8-i,-   _And  see 

plevin,  see  2  S.,iiii(Ier.s's  Addendn. —  7  Kast,  32.5.       And    post,  vol.  2.  371. 

Vin.  Abr.4)e44»H'»t»«»,  Q, u^{ji)iis  to  the  C'Sts 

(o)    1  Suu.id.    299.    n.   6.      1  T.  R.  (s)  7  T.  R.  727. 

479.     Post,  \'>\.%  .372.  n.  (/).  (r)  As  to  miyoiadcr,  ante,  105. 

(/>)   PerBia!..^r,  J.    1  T.   II.   479.  (?/)  Ante,  390.    .    c 

and  see  7  Rust,  r,25.  (\.)  3  Wils!  ^85.    -S^aimd.  171.  b 


m 


(7)  Hullook,  76.  Dou-.  722.  730. 

Vol.  I.  [  36-  ] 


394  <^^i''  THE  DECLARATION. 

//.  Ii3  parts,  tola,  and  no  vc7iire  de  novo  awarded. (w)     In  case,  therefore, 
5thi}'.   Ot  so-  there  be  an  insufficient  count,  if  the  mistake  be  discovered  be- 

veral    couuts. 

•5(f   395  fore   verdict,  it  is  expedient  to   strike   it  out  by  *leuvc  of  tlie- 

judge,  or  to  enter  a  nolle  prosequi  as  to  such  count ;  or  at  the 
trial  to  take  a  verdict  only  on  the  sufficient  counts  ;  however, 
"vvhcre  a  general  verdict  has  been  taken,  and  evidence  given 
only  on  the  good  counts,  the  court  will  permit  the  verdict  to 
be  amended  by  the  judge's  notes  j  so  where  it  -.tppears  by  the 
judge's  notes  that  the  jury  calculated  the  damages  on  evidence 
applicable  to  the  good  counts  only,  the  court  will  amend  the 
verdict  by  entering  it  on  those  counts,  though  evidence  was 
given  applicable  to  the  bad  count  also.(jr)  And  where  judg- 
ment has  been  given  on  demurrer  or  by  nil  dicic,  in  favour  of 
the  pUiintifi',  he  may  after  entering  judgment  for  himself  upon 
the  whole  declaration,  upon  discovering  any  error  in  one  of 
the  counts,  waive  his  judi^ment  on  that  count  and  enter  it  for 
the  defendant. (y) 

The  costs  also  are  to  be  attended  to  in  adding  several  counts. 
Where  the  plaintiff  obtains  a  verdict  only  upon  one  of  several 
counts  or  issues,  whether  in  the  King's  Bench  or  Common 
Pleas,  he  is  only  entitled  to  the  costs  relating  to  the  trial  of 
such  issue  ;  and  the  defendant  is  not  allowed  the  costs  of  the 
counts  found  for  him,  though  upon  supposed  causes  of  action 
different  from  that  in  respect  of  which  the  plaintiff  recover- 
^  ed  ;(2)  and  the  same  rule  has  prevailed  where  a  defendant  has 

succeeded  on  a  demurrer  as  to  part  of  the  plaintiff's  demand, 
''^   o9Gt  '^'^'1  *\.h.e  plaintiff  has  obtained  a   verdict  as  to  the  residue,  in 

which  case  no  costs  are  allow'ed  to  the  defendant  in  respect  of 
the  demurrer  ;(a)  but  if  there  be  two  distinct  causes  of  action 
in  two  separate  counts,  and  as  to  one,  the  defendant  suffers 
judgment  by  default,  and  as  to  the  other,  takes  issue,  and  ob- 
tains a  verdict,  he  is  entitled  to  judgment  for  his  costs  on  the 
latter  count,  notwithstanding   the  plaintiff  is  entitled  to  judg- 


(vo)  III.  ibid.  Common  Pleas  is  stated   otherwise, 

(x)  2  Saund.  171.  b.     Doug.  730.  but  the  case  2B.  k  P.  .334.  appe.irsto 

(;/)  2  B.  &  P.  49.  have  escaped  observation. 

Iz)  2B.   k  P.  334.    5  East,    261.  (a)  5  East,  261.     Tidd's  Prac.  4th 

In   Tidd's   Pi-ac.    4th   edit.  874.  n.  d.  edit.  876. 

and   5  East,  263.  the  practice  of  the 


OF  THE  DECLARATION.  39(3 

iiaent  and  costs  on  the  first  count. (/i)     Where  the  plalniifT  in   ^f-  I^^  parts. 

■it ill V     OF  se- 

ditferent  counts  vanes  the  statement  of  the  same  cause  of  ac-  \^y^\  counts. 
lion  for  fear  of  a  variance  and  nonsuit  on  the  trial,  and  succeeds 
upon  one,  it  seems  reasonable  that  he  should  not  be  punished 
with  the  payment  of  costs  in  resi>ect  of  such  other  of  the 
counts  as  he  may  not  be  able  to  prove  ;  but  where  he  unne- 
cessarily and  without  foundation  proceeds  in  the  same  declara- 
tion in  different  counts  for  distinct  causes  of  action,  it  might 
be  more  reasonable  to  allow  the  defendant  the  costs  of  such 
improper  counts,  and  of  the  evidence  which  the  defendant  ad- 
duced to  ne;-^ative  them  ;(c)  but  the  practice  appears  to  be  that 
the  defendant  is  not  in  either  case  entitled  to  costs. (t/) 

In  framinrj  a  second  or  subsequent  count  for  the  same  cause 
of  action,  care  should  be  taken  to  avoid  any  unnecessary  repe- 
tition of  the  same  matter,  and  by  an  inducement  \ii  the  first  count, 
applying  any  matter  to  the  foUowiiig^  counts,  and  by  referring 
concisely  in  the  subsequent  ^counts  to  such  inducement,  much  *   3;97 

unnecessary  prolixity  may  be  avoided,  and  this  is  usual  in  ac- 
tions for  words,  and  proper  to  be  attended  to  in  all  cases. (e) 
But  unless  the  second  count  expressly  refers  to  the  first,  na 
defect  therein  will  be  aided  by  the  preceding  count,  for  though 
both  counts  ai'e  in  the  same  declaration,  yet  they  arc  as  disdncL 
as  if  they  were  in  separate  declarations,  and  consequently  they 
must  independently  contain  all  necessary  allegations,  or  the 
latter  count  must  expressly  refer  to  the  fornier.(y)  The  com- 
mencement of  a  second  count,  "  And  whereas  also,"  Sec.  is  suffi- 
ciently positive  :( g)  In  order  to  avoid  any  objection  as  to  du- 
plicity, it  is  advisable  to  insert  in  the  second  count  for  the  same 
cause  of  action,  the  word  "  other"  goods.  Sec. (A)  but  after  verdict 
the  court  will  not   intend  the  goods,  Sec.  mentioned  in  the  se- 


{{>)  3  T.  11.  6,i4.     6  T.  R.  602,  COS.  Post,  vol.  2.  256.  260.     Id.  260.  ii.  (i), 

(c)    See  Lord  Eldon'.s  observations  And  see  €ro.   Eliz.  240.     And   as  to 

in  2  B.  &.  P.   335.    And  Lord  Ken-  llbel-r,,  2  Bl.  Rep.  1038. 

yon's  in  6  T.  K.  COI.  (/)  Bat.  Abr.  Pleas  and  Pleadins;, 

{d)  2  B.  k  P.  3.55.     5  East,  2f.l.  IJ.  i. 

(e)  See  the  observations  per  Mr.  (5-)  Post,  vol.  2.  260.  n.  (s). 

Justice  Lawrence,  7  E.ist,  506.  aw\  2  (A)  2Ld.  liayin.  842.     7  .Mod.  14S. 

H-.  Bl.  131, 132.  2  Wils.  114,  113.  See  S.  C.  Com.  Dig.  PlfaJer,  C.  S."}.    Sfc.^ 

precedents    Crown    Cir.    .\s?.     114,  vide  Salk.  21?. 


397  OF  THE  DECLARATION. 

//.  Its-  p'trts.  cond,  count  to  be  the  same  as  those  in  the  first,  unless  it  be  ex- 

MliJv.    Of  sc-  pj,essiy  so  stated. (0  '     . 


6i,ily.  Tlic  1  he  dcclaralion  in  personal  and   mixed  actions  should  coti- 

coiiciubion.  ,..,.. 

elude  toiiic  damagf^  oi  ilie  piaintni  ;{])  unless  in  .^cire  facias  and 

in  pentil  actions  at  the  suit  ol'  a  common  inlbrmer  ;  in  the  lat- 
*  398  tcr  case,  the  plaintitl's  ri.o^ht  to  the  penalty  did  *not  accrue  till 
the  brin;jing  of  the  action,  and  he  cannot  have  sustained  any 
damage  by  a  previous  deteniion  of  tlie  penalty,  it  is  not  proper 
to  conclude  ud  davinuiti .{k)  In  an  action  by  husband  and  wile  for 
a  b.ittery,  &c.  of  the  v,  ife,  or  vvhcKever  the  wife  is  properly  joined 
in  the  action,  the  dccluration  should  conclude  ad  damnum,  ifiso- 
rum  ;(/)  and  when  the  plainuff"  sues  as  executor,  adnunistratorj 
or  assignee  of  a  bankrupt,  it  is  usual  to  state  that  he  was  in- 
jured as  such  executor,  £cc.  In  debt  the  object  of  the  action 
being  to  recover  a  sum  of  money  co  nomine.^  the  damages  are 
generally  nominal. (?«)  But  in  assum/mit,  covenant,  case,  re- 
plevin, tres])ass  and  other  actions  for  the  recovery  of  damages, 
th.e  sum  in  the  conclusion  of  the  declaration  must  be  sufficient 
to  cover  the  real  demand  ;(??)  for  in  general  the  pLdntiff  can- 
not recover  greater  damages  than  he  has  declared  for,  and  laid 
in  the  conclusion  of  iiis  declaralion  ;(o)  and  if  judgment  be 
given  for  more,  it  is  error,  and  a  court  of  error  cannot  reduce 
the  sum  to  the  amount  st.ted  in  the  declaration. (/?)  If,  there- 
fore, the  verdict  be  for  more  than  the  damaoes  laid  in  the  de- 
claration, a  remiaitur  should  be  entered  as  to  the  surplus  be- 
fore judgment.  The  jury,  however,  may  give  a  verdict  for  as 
much  tis  is  declared  for,  and  also  give  costs  separately,  which 
*■  o99  costs  may  afterwards  be  increased  by  *the  court,  though  such 
dami;.ges  and  costs  might  together  exceed  the  damages  laid  in 


0)  Salk.  213.     Bac.  Xbi-.  Pleas,  B.  2.  A.  1  Salk.  1 14.   Post,  vol.  27i.  n.  (y). 

1.     Yin.  Ahr.  Di'daralion.  («)  .*.  iite,  100. 

CO  Cora.  Dl^'.   Pleader,  C.  84.     10  («)  2  Lev.  57. 

Co.  Vtf..  h.'Tir.  a.l.  " (&)  10  Co.  11".  a.  b.     A^in.  Abr.  Da- 

(/c}i  Burr.. 2021.  2490.  mr.ges,  R.    Com.  Dig.  Pleader,  C.  84- 

(/)  Com.  Dig.  Pie;i'l(-.%  C.  Si.      Id.  (p)  Id.  ibid.  ~  5  East,  142. 


OF  THE  DECLARATION.  399 

the  declaration. (r)  It  is  usual  in  practice  to  state  a  sum  suffi-  H-  lis  parts. 
cient  to  cover  the  real  demand,  with  interest  up  to  the  time  of  J^udusk).').'' 
final  judgment,  taking  care  in  actions  by  original,  on  account 
of  the  fine,  not  to  lay  the  damages  unnecessarily  high,  and  in 
such  action  by  original  the  declaration  ought  not  in  strictness 
to  vary  from  the  writ  in  the  amount  of  the  damages,  but  in  pro- 
ceeding by  bill  a  variance  in  the  amount  of  the  damages  be- 
tween the  ac  ctiain  part  of  the  latitat  and  the  declaration,  is  not 
material. (.<) 

In  point  oi  form  the  usual  conclusion  in  the  King's  Bench, 

**  is  to  the  damage  of  the  said  A  B  of /.  and  therefore  he 

"  brings  his  suit."  &c.  In  the  Common  Pleas,  the  conclusion 
is,  »  Wherefore  the  said  A  B  sailh  that  he  is  injured  and  hath 

"  sustained  damage  to  the  value  (or  '  amount')  of 1,  and 

"  therefore  he   brings   his  suit,"  kc.     In  the  Exchequer,  the 

form  runs,   "  To  the   damage  of  the  said  A  B  ol  1. 

"  whereby  he  is  the  less  able  to  satisfy  our  said  lord  the  king, 
"  the  debts  which  he  owes  his  said  majesty  at  his  Exchequer, 
<'  and  therefore  he  brings  his  suit,"  Sec.  By  the  above  words 
suit  or  secta  {cl  secjiieiulo)  were  anciently  understood  the  wit- 
nesses or  followei's  of  the  pluintifl",  for  in  former  times  the 
law  would  not  put  the  defendant  to  the  trouble  of  answeiing 
the  charge  till  the  plaintiff  had  made   out  at  *least  a  probable  '     400 

case.  But  the  actual  production  of  the  suit,  the  aecta  or  fol- 
lowers is  now  antiquated,  though  the  form  of  it  still  conti- 
nues.(f)  In  actions  against  attornies  and  other  officers  of  the 
court,  the  declaration  should  conclude  unde  petit  remedium  in- 
stead of  bringing  suit  ;(u)  but  an  inaccurate  conclusion  in  this 
case  is  no  cause  of  denuirrer  ;(x')  however  in  one  case  on  a 
special  demurrer  the  court  for  the  sake  of  keeping  up  the  old 
established  form  of  "  prays  reiief,"  &c.  proposed  an  amend- 
ment without  payment  of  costs. (x)  "When  the  action  is  by 
bill  against  a  member  of  the  house  of  commons,  the  bill  con- 
cludes with  a  prayer  of  process  to  be  made  to  the  plaintiff,  ac- 
cording to  the  statute.  Sec. 


(r)  Vin.   Abr.  Damages,  R.  pi.    9,  {u)  fiilb.  C.  P.  49. 

10,11.     lOCo.  U7.  a.  b.  (7)  Andr.   247.     Barnes,  3. 

(.t)  5  T.  R.  402.    Ante,  254.  (x)  Barnes,  16". 
(0  3  HI.  Com.  295.    Ciilb.  C.  P.  48. 


400 


OF  THE  DECLARATION. 


//.  Its  parts. 

7thly.  The 
profert  and 
piedgos. 


*-  401 


Defects  \vhen 
uukd. 


In  an  action  at  the  suit  of  an  executor  or  administrator,  im- 
mediately after  the  conclusion  to  the  damage,  8cc.  and  before 
the  pledges,  a  firofert  of  the  letters  testamentary,  or  letters  of 
administration  should  be  made  ;(y)  but  in  scire  facias  the  firo- 
fert  may  be  either  in  the  middle  or  at  the  end  of  the  declara- 
tion ;(z)  and  in  an  action  on  a  note  indorsed  to  the  plaintiff  by 
an  administrator,  no  profcrt  is  necessary,  because  the  plaintiff 
is  not  entitled  to  the  custody  of  the  letters  of  administration, 
Avhich,  however,  must  be  proved  on  the  trial  ;(a)  and  the 
omission  of  the  profcrt  is  now  aided,  unless  the  defendant  de- 
mur specially  for  the  defect.(6) 

*At  the  end  of  the  declaration  in  the  King's  Bench,  by  bill, 
it  is  usual  to  add,  the  plaintiff's  zovaxaovi pledges  to  prosecute^ 
John  Doe  and  Richard  Roe.(c)  But  in  proceedings  by  original 
and  in  the  Common  Pleas,  pledges  are  supposed  to  have  been 
found  in  the  first  instance  before  the  defendant  was  summoned, 
and  therefore  they  are  not  to  be  stated  at  the  end  of  the  decla- 
ration unless  in  proceeduirgs  against  attornies,  &c.(rf)  and  in  an 
action  at  the  suit  of  the  king,  the  queen,  or  an  infant,  pledges 
were  not  at  any  time  necessary  ;(f)  and  as  they  have  long  cea- 
sed to  be  real,(/)  the  statement  of  them  is  now  unnecessary, 
and  the  omission  cannot  be  taken  advantage  of,  even  by  special 
demurrer,  because  ceasante  vatione  cessat  et  ipsa  lex.(^g) 

If  the  defendant  instead  of  demurring  pleads  to  the  declara- 
tion, many  defects  therein,  and  particularly  those  which  are  not 
substantial,  will  be  aided  at  common  law,  either  by  the  plea  or 
by  a  verdict  for  the  plaintiff.(A)  Many  of  the  instances  have 
been  stated  when  considering  the  different  parts  of  the  decla- 


{y)  l?;ic.  Alir.  til.  Executor,  C. 

(-)  Cartli.  69. 

(rt)  Wi!!es,  560. 

(/>)  4  Ann.c.  16.  s.  1. 

(c)  3  Bl.  Com.  295.  Co.  Lit.  ICI. 
a.  n.  4.     Com.  Dig.  Pleader,  C.    16. 

(rf)  Summ.iry  on  Pleading,  42. 
JBarnes,  16.5. 

(e)  8  Co.  61.  Cro.  Car.  161.  Co. 
Lit.  133.  a.     Sir  W.  Jones,  177. 

(/)  3  Bl.  Com.  £95.  Co.  Lit.  161. 
a.  n.  4. 

(^)  3  T.  R.  157,  158.  Barnes,  163. 
2  H,  Bl.  161.     Summary   on   Plead- 


ing, 43.  and  yet  it  was  enacted  by  the 
statute  4  Ann.  e.  16.  s.  1.  that  no  ad- 
vantage shall  be  taken  of  the  omis- 
sion of  pledges,  w^jfess  assigned  spe- 
claUtj,  as  cause  of  dermtrrer,  thereby 
admitting  the  omission  to  be  an  ex- 
isting objection,  and  since  that  statute 
leave  has  been  given  to  amend,  see 
1  Wils.  2-26.  2  Wils.  142.  Rep.  temp. 
Hardw.  315.  Fortes.  330.  Barnes, 
163.     Palmer,  518. 

(/))  Com.  Dig.  Pleader,  C.  85.  8r 
and  the  cases  there  collected. 


OF  THE  DECLARATION.  401 

ration  ;  the  general  rule  appears  to  be  that  if  the  declaration  be  de-  //.  Its  parts. 
fective  *in  point  of  form,  as  wanting  time,  place,  or  other  cir-  l^efects  when 
cximstances,  it  may  be  aided  by  the  filea  ;\i)  and  in  some  instan-         *   40^"^ 
CCS  even  in  matters  of  substance  ;(X-)  thus  in  an  action  of  tres- 
pass for  taking  goods,  not  stating  them  to  be  the  property  of 
the  plaintiff,  the  defect  will  be  aided  if  the  defendant  by  his 
plea  admit  the   plaintiff's  pi'operty.C/)     After  verdict^  if  the 
issue  joined  be  such  as  necessarily  to  require  on  trial,  proof  of 
the  facts  defectively  or  imperfectly  stated,  or  omitted,  and  with- 
out which  it  is  not  to  be  presumed  that  the  judge  would  direct 
the  juiy  to  give,  or  the  jury  would  have  given,  the  verdict,  such 
defect,  imperfection,   or  omission,   is  cured  by  the  verdict  at 
common  laiv.(m)     In  short  the  court  will  infer  almost  any  thing 
after  verdict  ;(ra)  and  want  of  certainty  in  the  description  of  the 
consideration  or  of  the  contract  itself  will  be  thereby  aided  ;Co) 
but  this  rule  must  be  taken  with  some  qualifications  which  will 
hereafter  be  more  fully  stated  (/.')  and  the  defects  aided  by  dif- 
ferent statutes  will  also  then  be  considered. 


(«■)  Id.    ibid.     1  Sid.  184.      Plowd,  {in)  1  Saund.  228.  a.  n.  1.  and  cases 

182.    8  Co.  120.  b.  there  collected.  7  T.  R.  522.    Tidd's 

(k)  I  Sid.  184      1  Plowd.  182.  and  Trac.  4th  edit, 

see  tlie  cases  collected  in   Com.   Dig.  (n)  Per  Ld.  Eldon,  2  B.  &  P.  259. 

Pleader,  C.  85.     Ante,  261.     But  see  (o)  2  B.  k  P.  265. 

8  Co.  120.  b.  (/<)  2  B.  &  P.  259.     1  Saund.  228. 

(0  1  Sid.  184.  n,  1. 


405 


CHAP.  ^". 

WI    THE    CLAIM  OF   CONUSA?fCE,  AI'PEAUANCE      AND    DEFENCE, 
OYER,    AND    IMPARLANCES. 

XJErORE  wc  consider  the  different  pleas  in  personal  actions 
it  may  be  proper  in  this  chapter  to  exaniine  a  few  points    re- 
lating to  the  claim  of  conusance,  appearance  and  defence,  oyer 
and  imparlances. 
conusance.  The  claim  of  conusance(a)  is  defined  to  be  an  intervention  by 

a  third  person,  demanding  judicature  in  the  cause  against  the 
pliiintifT,  who  has  chosen  to  commence  his  action  out  of  the 
cLimant's  court. (6)  It  is  a  question  of  jurisdiction  between 
the  two  courts. (c)  and  not  between  the  pLiiniiff  and  defendant, 
as  in  the  c;.se  of  a  plea  to  the  jurisdiction,  and  therefore  it  must 
be  demanded  by  the  party  entitled  to  conusance,  or  by  his  re- 
presentative, and  not  by  the  defendant  or  his  attorney. W)  A 
plea  to  the  jurisdiction  *must  be  pleaded  in  person,  but  a  claim 
of  conusance  may  be  made  by  attorney,  (e)  Hence  the  consi- 
deration of  this  claim  njight,  on  first  view,  appear  foreign  to  a 


(rt)  As  to  conusance  in  trcneral,  see  and  ple.ts  to  the  jurisdiction,  and  in 

Giib.  C.  P.  192.  Sic.     1  Seilon,  Cli.  7.  abatement. 

Ti(kl,  Ch.  2".  Yin.  Abr.  Conusance.  (6)  2  Wi!s.  409.  See  tlie  precedents 

Com.  Dig.  Courts,   P.       Bac.    Abr.  in  Rast.  Ent.   128.     Willes,   iSS.     2 

Courts,  D.  3.     3  Bl.  Com.  23S.     As  "\Vi!s.  4lO. 

it  is  stated,  that  the  claim  of  conu-  {a)  Fortes.  Rep.  157.     5  Viii  Abr, 

sance  should  be  m.ade  Ih'forn  defence,  588,  589.  S.  C. 

see  3  Bl.  Coin.  298.  I  have   consider-  ((/)  Fortes.  Rep.  15".     5  Vin.  Abr. 

ed  the  nature  of  such  claim  anterior  588,  589.  5'».>.  596.  600.     12  Mod.  666. 

to     defsiice    and    imparlance,    oyer  (e)  2  Wils.  410.     5  Via.  Abr.  599. 


OF  THE  CLAIM  OF  CONUSANCE.  404 


treatise  of  this  nature,  but  as  it  is   frequently  made  at  the  insti-  L    Claim   of 

gation  of  the  defendant,  and  affects  the  pleadings,  it  is  proper  <^<'""*""^''- 

to  be  concisely  inquired  into.     This  claim,  when  made   upon 

the  courts  at  Westminster^  is  not  encouraged,  and  therefore  the 

greatest  accuracy  must  lie  observed  in  the  time  and  manner  of 

making  it.(/)     It  may  be  considered  with  reference,   1st.    To 

the  several  sorts  of  inferior  jurisdictions  ;  2dly.  To  the  actions 

in  which  conusance  may  be  claimed  ;  and   3dly.   To  the   time 

and  manner  of  claiming  it. 

According  to  the  various  decisions  collected  in  finer's 
Abridgment ^{g)  there  are  three  soris  o(  inferior  jurisdictions. 
The  ^rst  is  by  grant  tenere  filacita,  which  is  of  the  lowest  de- 
scription, and  is  merely  a  concurrer.t  jurisdiction,  and  can  nei- 
ther be  claimed  nor  pleaded  ;  and  where  priority  of  suit  gives 
one  court  the  preference.(//)  The  second  is  by  grant  habere 
cognitioneni  fdacitorum^  and  this  must  be  limited  as  to 
place,  and  being  intended  for  the  benefit  of  the  lord,  may 
be  claimed  by  him,  though  it  cannot  be  pleaded  by  the  de- 
fendant to  the  jurisdiction.  The  third  is  by  grant  habere 
cognitioneni  fdacitoriim  with  excliidve  ivords,  as  where  the  king 
grants  to  a  city  that  the  inhabitants  shall  be  sued  within  the 
city  *and  not  elsenuhere,  and  this  may  follow  the  person,  and  ^   4Q5 

need  not  be  confined  to  any  place,  and  being  an  exempt  juris- 
diction may  be  either  claimed  by  the  lord,  or  pleaded  by  the 
defendant,  to  the  jurisdiction  ;  but  even  in  the  latter  case,  the 
proceeding  in  the  superior  courts  must  be  oljjected  to  in  the 
first  instance  by  claim  of  conusance,  or  plea  to  the  jurisdic- 
tioH.(z)  Hence,  it  is  a  general  rule,  that  where  the  defendant  is 
at  liberty  to  plead  to  the  jurisdiction  of  the  court,  the  lord  of  the 
franchise  may  claim  conusance,  but  not  vice  versa.ij)  Where 
two  persons  claim  conusance,  it  is  to  be  granted  to  him  who 
first  demanded  it,  and  the  right  of  the  parties  claiming  conu- 
sance, must  be  tried  in  another  action  between  them.(X) 

(/)  See  the  reason,  2  Wils.  408,  Westminster,  is  in  t-  ect  taken  away 

409.     Wiiles,  237,  238.  by    iiifTercnt  statute^,    a  i  :    in    such 

(^)   Tit.   Conusance,   vol.    5.   559.  ca.se  the  objection  niaj"  be  (.leaded  in 

See  also  Com.   Dig.  Courts.  P.     Bac.  bar,  or  given  in    evidence  under  the 

Abr.  Courts,  D.     Fortes.  R  jp.  1.t6.  general  issue.     See   1  East,  352,     6 

(/i)  Id.  ibid.    10  Mod.   126.  Hardr.  East,  583. 
509.     Palm.  456.     12  Mod.  643.  (./)  Giib.  C.  P.  193. 

(0  Id.  ibid.     Andr.   198.   '  In  some         [k)  5  Yin.  Abr.  599 
cases  the  jurisdicuon  of  the  couits  at 

Vol.  I.  [  37  ] 


403  OF  THE  CLALM  OF  CONUSANCE.  ^|| 

/  C'nim  "f  'i  '"'^  privilej^e  of  cluimin^  conusance  is  confined  to  courts  of 
amusiince.  record  unless  in  the  case  of  ancient  demesne  ;(/)  and  to  local 
actions  ;hn)  except  where  the  defendant  is  a  member  of  the 
university  of  Oxford  or  Cambridge  ;M  it  is  also  confined  to 
such  actions  as  were  in  esse  at  the  time  of  the  grant  ;(f-')  and 
decs  not  extend  to  those  created  since  by  act  of  parliament, 
except  where  a  common  law  action  is  given  against  a  person 
l>y  anoUier  name,  as  debt  against  an  administratov.(/0  Neithef 
*   406  vviil  this  privilege  be  *allowed,  where  the  court  claiming  conu- 

sance, cannot  give  remedy,(y)  and  when  there  would  conse- 
quently be  a  failure  of  justice  ;(?•)  as  in  replevin,  because  if  the 
pKiintiH'  be  nonsuited,  a  second  deliverance  should  be  granted, 
wliich  the  franchise  cannot  issue  ;(.s)norin  r/uare im/iedit,heca\ise 
the  inferior  court  cannot  send  a  writ  to  the  bishop, (/)  nor  in 
Avaste,  or  where  the  lord  is  a  party  and  the  plea  is  to  be  holden 
before  lun^self  ;Ci/)  or  wliere  the  defendant  is  a  stranger  who 
hath  nothing  within  the  franchise, (i')  or  where  ihe  /ilaijitiff  is 
a  privileged  person,  as  an  attorney  or  officer  of  the  court,(TO) 
and  it  also  seems  tliat  the  court  cannot  grant  conusance  in 
part  ;'x)  though  upon  a  plea  in  al)atement,  the  writ  may  abate 
as  to  a  part  (^/)  Conusance  may  however  be  claimed,  where 
the  defendant  is  in  the  actual  custody  of  the  marshal.(r) 

With  respect  to  the  (i?)ie  when  conusance  should  be  claim- 
ed, it  should  be  after  the  defendant  has  appeared,  because  till 
then  there  is  rio  cimse  in  court,  and  the  defendant  might  coun- 
terplead the  conusance. (fl)     It  is  said  that  it  should  be   before 


(/)  2  r;ii!).  c.  p.  I'ji,  10':.    2  imt.  (-•)  1  iinii.  Abr.  493.  pi.  ic.  1.  48.— 

]40.      Willcs,  230.     5  F,ast,  2S4.  22  Ass.  S3. 

(w)  i  Inst.  213.     1  Si<J.  10.^1.  (u'j  Wilies,  233.  3  Leon.  149.    Lit. 

(;/)  <iilb.  C.  P.  193.  Bac.  Abr.  102.  Tlcp.  3(4.    Harnes,  340.     5  Yin.  Abr. 

Moo<Ii!.  Inst.  521,  .522.  590.  S.  C.     Id.  592.  arc.   Uendl.   2.33- 

(t.')  14  Hei(.  IV.  20.  B.  contra,    nor  where  the  defendant  is 

(/;)  III.     £2  El!  vv.  IV.  22.  an   HUorncv,    sec    Yin.  Abr.  572.    1 

(y)  2  Ye:itr.  3fi3.  Hoil.  Abr.  489.  ace.   5  \iiu  Abr.  594. 

(r)  Id.  ibid.    Hard.  50"  contra. 

(.s)  2  Inst.  140.  (.r)  5  \\n.  Abr.  597.     1  Roll.  495. 

\t)  Bac.  Abr.  tit.  Courts.  D.  .3.  Q/)  2  Saund.  209,  210.  in  notis.  2  B. 

(w)  8  Hen.  VI.  IS,  19,  20,  21.  Hob.  &  P.  420.     Rep.  temp.  Hardw.  273. 

87.     Ste  the  singuliii'  argument,  3  Bl.  (;)  1  Saik.  2.    Gilb.  C.  P.  195.  Bro. 

CtJia.  n.  d.  299.  Abr.  Conu.iaiice,  50. 


(</)  Gilb.  C.  P.  196.    Comb,  319. 


OF  THE  CLAIM  OF  CONUSANCE.  :^4.07 

i'ull  dcfence,(3)  and  accordintj  to  the  *entiics,  it  is  lo  be  made  T.  dun  of 
before  any  defence,  immediately  dfter  the  suuement  of  the  dc-  "*'"""''''• 
fcndiint's  appearance, (c)  and  it  is  an  established  rule  of  law, 
"  tliat  it  must  be  claimed  in  the  first  instance  or  at  the  first 
"  day>"(''/)  and  consequently  it  should  be  made  before  inipar- 
lance  ;(<)  though  in  general  where  a  declaration  is  deli\ered 
ill  vacation  as  of  the  preceding  term,  the  claim  or  coiuisunce 
may  be  entered  on  the  first  day  of  the  following  term,  as  of  tlie 
preceding  terin.(/)  Where  the  vrit  discloses  the  parlicuUirs 
of  the  cause  of  action,  it  appears  to  have  been  considered  us 
legal  notice  to  the  lord,  S:c.  of  the  invasion  of  his  juiisdiction, 
80  as  to  make  it  incumbent  on  him  to  claim  coiuisance  on  the 
very  first  day  the  defendant  hath  in  court,  even  upon  the  re- 
turn day  of  the  writ ;  but  v.hen  the  writ  does  not  disclose  the 
precise  cause  of  action,  then  it  is  sufiicient  to  make  the  claim 
on  the  first  day  given  upon  the  declaration. (5) 

In  point  of  ybr;/7,(/7)  conusance  may  be  claimed  by  the  lord 
of  the  franchise,  or  by  his  bailifl'  or  attorney. (/")  If  it  be 
claimed  by  attorney,  the  warrant  of  attorney  must  be  pro- 
duced in  court  and  filed. (y)  The  grant  of  conusance  must 
also  be  produced. U)  or  an  exemplification  of  it  under  *the  *  4Qg 
great  seal;C/)  and  if  the  grant  was  before  time  of  memory, 
an  allowance  must  be  shewn  in  the  King's  Bench,  or  be- 
fore justices  in  Eyre,  or  confirmation  by  patent, (m)  and  it 
cannot  be  claimed  by  prescription. (/O  Upon  a  claim  made  by 
the  university  of  Cambridge, {0)  there  must,  in  addition  to  the 
grant,  be  an  exemplification  of  the  private  statute  confirming 


(6)  3  Bl.  Com.  '298.    But  .see  5  Vin.  (/)  Rro.  Abr.  tit.  Coiius:»nce,  .50.    12 

Ahi-.  597.     I  Uoll.  Aljr.  495.  Mod.  fiU.  Citifi.     See   the  entr^,R-e.i{. 

(c)  Uast.  lint.  128.    2  V\  Us.  410.  Eiit.  1-2S.     Willes,  2;34. 

{({)   5    Burr.    2823.      Rep.   temp.  (,/)   See  the  lorni,  Wiiics,  233,  234. 

Hanhv.  241.     2  Wils.  411.       \\\\W%,  P.ilm.  456.     1  Sid.  103.    I  Lev.  89.    2 

233.  Y\  lis.  4oG. 

(e)  Id.  ibid.    2Wi!s.  411.     Willeis,  (A)  12  Mod.  644.     1  Bl.  Hep.  454. 

233.     3  Bl.  Coin.    29S.    10  .Mod.  127.  (/)  5  Rm-r.  2820. 

Fortes.  LS?.  («0   Keilw.    189,   190.     I  Sid,  103. 

(/)  2  "Wils.  411,412.  1  Salk.  183.      iLd.  K:.jni.    427,    42S. 

(§■)  5  Bun-.  2823.    2  Wils.  4l3.    10  475.     S.   C.  Gilb.  C.  1'.    195.  but  see 

Mod.  127.  Bi-o.  Abr.  tit.  Conusance,  51. 

(/,)   Com.   Dig.    tit.   Comts,  P.   3.  («)  Com.  Di^.  tit.  Courts,  P.  3. 

Ra.st.  EiU.  128.  {<•)  1"  ^J"'l-  l-'>-    I  Kl'  Hep.  45l* 


408  OF  THE  CLAIM  OF  CONUSANCE. 

7.  Chum  of  it,(/z)  together  with  an  affidavit  of  the  defendant's  residence.(7j 
i  he  claim  itseit  must  be  entered  upon  a  roll. (.rj  It  being  a 
demand  of  something  (jnod  sibl  dcbetur^  it  must  be  perfectly 
entered  upon  record,  and  must  state  every  thing  that  is  to  take 
away  tlie  general  jurisdiction  of  the  superior  courtj  and  tht 
nvhol"  ought  to  be  set  forth  ivlth  all  the.  jiroceedings  in  the  caune 
in  the  superior  court  till  the  instant  of  making  the  claim,  and 
after  stating  the  proceedings,  the  entry  runs  thus  :  "  And  the 
"  said  delendant  by  E  F^  his  attorney  comes  ;"  {but  the  de- 
fendant  nays  no  more  nor  makes  any   dcjlncc,  and  then  the  entry 

proceeds  as-  foilows)  "  and  hereupon  comes ,  chancel- 

"  lor  of  tlie  university  of  Oxford^  by  G  //,  his  attorney,  to 
"  demand,  claim,  prosecute  and  defend  his  liberties  and  privi- 
"  leges  thereof,  that  is  to  say,  to  have  the  conusance  of  the 
"  plea  aforesaid,  because  he  saith,"  &c.  {setting  out  with  great 
precision  all  the  circumstances  on  ivhich  the  claim  is  founded^  and 
concluding  thus:)    "  and  the  said  chancellor  demands  his  liber- 

*  409  "  ties  and  privileges  aforesaid,  according  *to  the  form  and  ef- 
"  feet  of  the  letters  patent  aforesaid,  and  the  confirmation  afore- 
"  said,  in  this  plea  between  the  parties  aforesiiid,  here  in  the 
"  court  of  our  said  lord  the  king  now  depending,  to  be  allowed 
"  to  him,  as  heretofore  hath  been  allovjed"{s^  though  the  lat- 
ter words  are  not  necessary,  where  the  franchise  is  given  by 
act  of  parliament. (/) 

The  claim  of  conusance  if  insufficient  in  form  or  substance, 
jnay  be  demurred  to,  or  the  facts  therein  alleged  may  be  tra- 
versed by  the  plaintifl".(zO  If  the  claim  be  disallowed  on  demur- 
rer, the  judgment,  after  the  usual  entry  oi  curia  advisurevult, 
and  giving  day  to  hear  judgment,  as  well  to  the  plaintiff,  and  per- 
son claiming  conusance,  as  to  the  defendant,  is,  that  the  matter 
aforesaid  by  the  party  claiming  conusance  in  manner  and  form 
aforesaid  alleged,  is  not  sufficient  in  law,  therefore  it  is  consi- 
dered that  the  said.  Sec.  (the  person  claiming  conusance)  have 
not  his  aforesaid  liberty,  in  his  said  plea  mentioned,  and  it  is 


(p)  1.3  Eliz.  c.  29.      2  Wils.  412.  (s)  Per  Wilmot,  C.  J.  2  Wils.  409, 

(f/)  1  Barn.  K.  B.  49.  05.     2  Stra.  410.     Rast.  128.     Willes,  234. 

810.     2  Wils.  311.     1  Bl.   Rep.  454.  (^  Id- ibi'l- 

5  Burr.  2S20.  (ii)  2  Wils.  410.  Comb.  319.    Ras(. 

(r)  Conil).  319.     1  Barn.  K.  B.  Co.  Eut.  129. 

2  Stra.  SIO. 


OF  THE  CLAIM  OF  CONUSANCE.  4q9 

commanded  by  the  said  court,  as  well  to  the  said,  &c.  (the  per-  1-  Claim  of 
...  ■       ,  ,  •  1     1    r      1  ,  ,        conusance. 

son  claiming  conusance)  as  to  the  said  deiendant,  that  to  the 

■\viit  and  count  aforesaid,  the  said  defendant  do  answer,  &c.  and 
thereupon  the  said  defendant  defends  the  wrong  and  injury, 
when,  &c.  and  prays  leave  to  imparl.  Sec.  and  the  pleadings 
proceed  as  usual,  (f) 

If  the  claim  be  allowed,  a  day  is  given  upon  the  roll,  for  the 
lord  of  the  franchise  to  hold  his  court,  and  the  parties  are  com- 
manded to  be  there  *on  that  day.(iv)  But  the  record  stiil  re-  ^  t^r. 
mains  in  the  court  above  ;  and  a  transcript  only  is  sent  down  to 
the  court  below,(w)in  order  that  if  justice  be  not  done  there,  as 
if  the  defendant  be  a  stranger,  and  bus  nothing  within  the  fran- 
chise, by  which  he  can  be  summoned,  or  if  the  judge  refuse 
to  do  justice,  the  plaintiff  may  have  a  resuvnnons  upon  the  re- 
cord in  the  court  above, (j?)  the  cause  assigned  in  which  resum- 
mons may  be  traversed  by  the  party,  who  originally  claimed 
conusance  ;  and  if  found  for  him,  the  cause  will  be  remanded  ; 
but  if  found  against  him,  the  parties  go  on  in  the  superior 
court,  from  the  period  or  situation  in  which  the  cause  was  at 
the  allowance  of  the  claim,  just  as  if  such  claim  had  never  been 
allowed. (j/)  And  if  a  resummons  issue,  upon  failure  of  right 
in  a  franchise,  the  lord  of  the  franchise  shall  never  afterwards 
have  conusance  of  that  plea.(2) 


Before  we  inquire  into  the  qualities  and  parts  of  the  various  II.  .Ipjjear- 
pleas  in  personal  actions,  it  is  advisable  to  consider  the  state-  ""^''^  ""'^  <'^- 
ment  of  the  defendant's  afifiearance^  of  his  defence,  of  the  de- 
mand of  oycr^  and  of  imjiarlances^  which,  when  they  occur  in 
pleading,  usually  precede  the  statement  of  the  subject  matter 
of  the  defence.  The  language  of  the  plea,  and  of  the  entry 
on  the  record  of  these  allegations  is  thus  :  "And  the  said  C 
"  Z),  {the  di'fendant^)  by  E  E\  his  attorney,  comes  *and  defends 
"  the  wrong  (or  in  trespass  ''■force")  and  injury,  when,  See.  and 


*    4U 


(tj)  Rast.  1-28.  b.  (x)  2   Wils.   411.      \2  Mod.   644. 

(v)  Rjist.  K.it.  129.    2  Wils.  411.  2  Harrlw.  .507.     But  see  5  Vin.  Abr.  tit. 

L(l.  Uaym.  836,  837.       12   Motl.    644.  Conusance,  .589.     10  INInd.  127. 

3  Salk.  79.  S.  C.  (,,)  2   Wils.  411.  6  Vin.  Abr.  .S,  4. 

(w)  Id.  Jcnk.  31.    5  Via.  Abr.  599.  (:)  Jenk.  34.  5  Vin.  Abr.  576.  588. 


Jtll  OF  APPEARANCE  AND  DEFENCE. 

//.  Appear-     «  craves  oyer  of  the  said  vvritincr  obligatory,  and  it  is  read  to 

ance  and  de-  .  o  a         j  > 

fence.  "  him,  Sec.  he  also  craves  oxjer  of  the  condition  of  the  said  wri- 

"  ting  obligatory,  and  it  is  read  to  liim  in  these  words  :  The 
"  condition,  SiC.  {selling  out  thf  coiidiiion  verbatim.)  Which 
"  being  read  and  heard,  the  said  C   D  prays  leave  to  inipurl 

"  to  the  said  declaration  until next  after ,  and 

"  it  is  granted  to  him,  and  the  same  day  is  given  to  the  said 
"  J   B,  {the  /ilaintiff)  here,  &c.      At  which  day,   to  wit,  on 

" •  next    after  ,  at    IVci^tminster  aforesaid,   come  as 

"  well  the  said  A  B,  as  the  ^aid  C  ZJ,  by  their  respective  at- 
"  tornics  afoi'esaid  ;  and  the  said  C  D  saith,  tiiat  the  said  A 
"  B  ought  not  have  or  mainiain  his  aforesaid  action  thereof 
"  against  him,  l)ecause  he  saith  that,  £cc.  {stating'  the  ground 
«  of  drf,nccy\,) 

The  above  "  venii"  is  the  statement  on  record  of  the  defend- 
ant's appearance  in  court,  and  is  snid  to  be  necessary  to  make 
him  a  party  to  the  suit,  because  dicit  without  ■v):nit  might  be 
ore  tcnufs.{t~)  It  has  however  been  decided  that  the  word  veitit 
is  no  part  of  the  pica,  so  that  if  defence  be  marie  without  it, 
it  is  good,  for  the  defendant's  making  defence  shews  him  to  be 
in  court,  and  makes  him  a  party  in  the  plea,  particularly  where 
he  appears  to  be  in  cu.'itodia.(jt)  When  the  defendant  pleads 
in  a  cliHerent  name  to  that  in  which  he  is  sued,  whether  in 
*  412  abatement  or  in  *bar,  the  statement  of  appearance  must  not  be, 
"  and  the  said  C  D  comes,"  8cc.  but  should  be,  "  and  C  D, 
"  (the  real  name,)  against  whom  the  said  ji  B  hath  exhibited 

"  his  said  bill  by  the  name  of  E  D,  by ,  his  attorney, 

"  comes  and  defends,"  8cc  iv)  In  general  the  appearance  may 
be  stated  to  have  been  in  person  or  by  attorney,  according 
to  the  fact,  but  in  an  action  against  d^fevie  covert  sued  alone,  it 
must  oe  alleged  that  she  appeared  in  person  ;(w)  and  an  infant 
must  plead  by  guardian,  and  not  by  attorney  or  ftrochcin  amy.(x) 
And  in  pleas  to   the  jurisdiction,  the   appearance   must  be  in 


(.i)  See  the  form,  3  Bl.  Cora.     Ap-  (r)  3  Wils.  413.     5   T.  R.  487.     3 

pcixlix,  Xo.  3.  Went.  210.  Willos,  41.  ii.  c.  2  Sauiid. 

(0  Skin.   582.       Tiib.   C    P.    \<if,.  •209.  I),  n.  1 . 

Bac.  Abr.  Pleas,  D.  Com.  Dig.  Abide-  (w)  2  Siiaiul.  209.  c.    Post,  vol.  3. 

mesit,  I.  16.   Lutw.  8,  9.  Co.  Lit.  127.  40'i. 

t.  (x)  2  Sauiid.  117.  f.  n.  1.     lb.  212. 

(m)   Salk.   544.     Skill.   5S2.    Com.  a.  n.  4.     Post.  vol.  2.  410. 
Dig.  Abatement,  I.  16. 


OF  APPEARANCE  AND  DErEXCE.  412 

person. fv)     And  though  several  altornies  in   partnership  may  IT.  Jlppear. 

,-      ,         .  .Ill  1      ^  ''""^^  ""'^  ^^*- 

bc  retained  by  the  defendant,  he  can  only  plead  by  one,  and  not    .^^^ 

in  the  name  of  the  firm.Cr) 

After  the  statement  of  the  appearance  follows  the  defence^ 
which  is  defined  to  be  the  denial  of  the  truth  or  validity  of  the 
complaint,  and  does  not  signify  a  justification.  It  is  a  general 
assertion  that  the  plaintiff"  has  no  ground  of  action,  which  as- 
sertion is  afterwards  extended  and  maintained  in  the  plea. (a) 
This  is  so  essential  in  pleading,  that  formerly  if  no  defence 
were  made,  ih.ough  the  plea  were  in  other  respects  sufficient, 
judgment  was  given  against  the  defendant. ('^)  *\r\  scire  Judas,  *  ^\^ 
however,  no  defence  is  made  ;(c)  and  it  is  not  neces5ary  in  a 
plea  of  ancient  demesne. (c/)  or  to  the  jurisdiction  of  an  infe- 
rior court  having  no  jurisdiction  of  the  matter,  though  it  is 
otherwise  when  the  plea  relates  I'ather  to  the  person  than  to 
the  sul)ject  matter  of  the  action. (f)  Where,  however,  an  at- 
torney of  the  Common  Pleas  was  sued  in  the  King's  B^nch, 
and  pleaded  his  privilege  without  a  defence,  it  was  held  suf- 
ficient.(./")  Defence  is  of  two  descriptions,  first,  half  defence 
which  is  as  follows,  "  vcnit  et  defendit  vimet  vijuriam  ct  dicit," 
he.  or  secondly,  full  defence,  "  vc7:i(  ct  defendit  vim  ct  ivjuriam 
"  (jitando"  &c.  (meaning  "  (juando  et  ubi  curia  consideravit" 
or  when  and  where  it  shall  behove  him.)  "  et  damna  et  auicrjuid 
"  quod  ifise  defendere  debet  et  dicit"  Sec. (5)  In  strictness  the 
words  "  quando"  &c.  ought  not  to  be  added  when  only  half 
defence  is  to  be  made,  and  after  the  words  "  venit  et  difendit 
"  vim  ct  injuriam"  the  subject  matter  of  the  plea  should  im- 
mediately be  stated.(/i)  It  has,  however,  now  become  the 
practice  in  all  cases,  whether  half  or  full  defence  be  intended, 
to  state  it  as  follows  :  "  And  the  said  C  Z),  by ,  his  al- 


{y)  2  Saund.  20D.  b.  c.  (a-)   Mac.  Alir.  Pleas  U- 

(2)  4  East,  195.  (  /")   I  Salk.  39.      Bac.  \\n\  Picas, 

(a)  3  Bl.  Com.  296.      Co.  Lit.  127.  D. 

b.     As  to  defence  ill  general,  seethe  (^'•)  Co.  Lit.    Vll .    b.      Bac.   Abr. 

same    references,     and     Bac.    Abr.  Pli^as,  D.     Ua.st.    Eiit.   f).')2.     AA'illes, 

Picas,  D.  and  8  T.  R.  631.  41.     Gilb.   C.    P.   188.      S  T.  R.  C.^S. 

(6)    Co.    Lit     127.    b.     Bac.   Abr.  See  tbe  forms,  3  Bl.  Com.  Appendix, 

Pleas,    D.       Willes,    4l.       But  see  No.  3.     Post,  vol.2.  409. 

Skin.  582.  (A)  Gilb.  C.  P.   1S8.     8  T.  R.  63^ 

(c)  3  Lev.  182.  3  B.  k  P.  9.  n.  a. 

(</)  3  Lev.  182.    Ld.  Raym.  117. 


413  OF  OYER. 

//.  Jppear.    "  torncy,  comes  and  defends  the  wrong  (or  in  trespass  force) 
fence.  "  '^^^  injury,  when^    &c.    and   says,"  which  will  be  considered 

*  414  only  as  half  defence  in  cases  where  *such  a  defence  should  be 
made,  and  as  full  defence  when  the  latter  is  necessary. (/)  If 
full  defence  were  made  expressly  by  the  words  "  when  and 
"  where  it  shall  behove  him,"  and  "  the  damages  and  what- 
"  ever  else  he  ought  to  defend,"  the  defendant  would  be  pre- 
cluded from  pleading  to  the  jurisdiction  or  in  abatement,  for 
by  defending  when  and  nv/ierc  it  shall  behove  him,  the  defend- 
ant acknowledges  the  jurisdiction  of  the  court,  and  by  defend- 
ing the  darnagcn  h.e  waives  all  exceptions  to  the  person  of  the 
plaintifr.(y)  Want  of  defence  being  only  matter  of  form  the 
omission  is  aided  on  a  general  demurrer.(X.) 


Jir.  Of  oiicr.  The  statement  in  a  plea  of  oijer  and  of  the  deed  follows  the 
defence  and  precedes  the  entry  of  imparlance.(a)  It  is  a  prayer 
or  petition,  that  the  party  may  hear  read  to  him  the  deed,  &.c. 
stated  in  the  pleaduigs  of  the  opposite  parly,  and  which  deed 
is  by  intendment  of  law  in  court,  when  it  is  pleaded  with  a 
prqfert.(6) 

If  the  plaintiff  in  his  declaration  necessarily  make  a  firofert 
of  any  deed,  probate,  letters  of  administration,  &c.  the  defend- 
ant may  pray  oijer^  which  cannot  in  such  case  be  refused  by  the 

^   ^-1  ■-  court  ;(f)    *and  if  the  deed  be  lost  or  destroyed,  the  plaintiff 

should   declare  accordingly,  whereby  the    defendant  would  be 
precluded  from  praying  oijcr^{d)  but  if  a  profcrt  be  unneceasa- 


(/)  S  T.  Tv.  f)j3.     ■\Vil!e.s,  41.    3  B.  ilenianil   of    oyer    has  been  so  fully 

k  P.  9.     2  Saiunl.  '209.  c.  considered   in   the   works  referred  to 

(j)  2  Saiind.   20'J.   c.      3  Rl.  Com.  in  this  note  that  it  m  ill   be    sufficient 

297,  298.     Co.  Lit  12".  b.    Bac.  Abr.  hereto  confine  o\ir  attention  to  such 

Picas,  D.  points  as  relate   to  pleading.     Tidd's 

{k)  3Salk.  271.  Prac.   .3d  edit.   526  to   531.    4th   edit. 

(a)  Ante,  411.  but  see  an  instance  51S  to  523.       1  Sell.  Prac.  285  to  291. 

of  oyer  after  imparlance,  1  Saund.  3.  1  Saund.  9.     Com.  Uig.  Pleader,  P. 
289.  (c)  2Stra.  1186     3  T.  R-.  151.    As 

(6)    3  Bl.  Com.  299.       SSalk.  119.  to   when  a  profert  is  necessary,  see 

12  Mod.  598.  Bac.  Abr.  Pleas,  I.  12,  ante,  348  to  350. 
13.  1  Sid.  SOS.  (ICC.  Lutw.  1C44.  {d)  Ante,  350. 
contra.    The  practice  relative  to  the 


OF  OYER.  415 

rihj  made,  the  defendant  musl  picad  without  oyer/^e)  ihoup,li  ///  Of  oij.-r 
if  it  be  craved  and  ^iven,  he  iias  a  ri.Q;ht  to  make  use  of  it.(/) 
Oyer  was  formerly  allowed  of  the  orii^irial  writ  in  oir'tr  to  de- 
murer plead  in  abatement  for  any  insufficiency  or  variance  l)e- 
tween  the  writ  and  declaratioti ;  but  this  practice  was  altered 
by  rule  of  court,  and  if  the  defendant  demand  oijcr  of  the  v.iit, 
the  plaintiff  m  ly  proceed  as  if  no  such  demand  had  been 
made,(^)  nor  is  o;/fr  demandJ)!e  of  a  record  ;(/2)  and  as  it  can- 
not be  granted  of  any  deed,  &c.whicli  is  not  j^resumcd  to  li.we 
been  broui^ht  into  court,  the  defendant  cannot  in  an  action  up- 
on a  bond  conditioned  for  performance  of  covenants  in  anoilier 
deed  crave  oyer  of  such  deed,  Imt  he  and  n<jt  t!ie  pKantilf 
must  shew  it,  or  the  counterpart  with  a  prufcrt  or  an  t-xcusc 
for  the  omission,  though  the  court  mis^ht  compel  the  plaintiff 
to  ijive  the  defendant  a  copy  to  cnabie  him  to  plead  ;(/)  if, 
however,  oyer  be  improperly  crcved  and  the  deed  be  stated 
upon  it,  the  defect  in  the  plea  will  be  aided  on  a  general  de- 
murrer.(7)  If  the  defence  be  founded  upon  any  objection  to 
the  form  of  the  bond,  as  where  a  tjuil-bond  *has  been  given  to  ^    416 

the  sheriff,  but  not  by  his  name  of  office  ;  and  tlie  defect  do 
not  appear  on  the  face  of  the  declaration,  oyer  mii&i  be  craved, 
and  after  setting  forth  the  i)ond,  the  defendant  may  demur. (Xr) 
And  in  an  action  at  the  suit  of  an  administratrix,  the  defendant 
should  crave  oyer^  and  set  out  the  letters  of  an  administration, 
if  he  wish  to  avail  himself  of  any  variance  in  the  statensent  of 
them  in  the  declaration .(/)  ho  if  in  the  declaration,  any  part 
of  a  deed  qualifying  or  rendering  the  defendant's  contract  dis- 
similar to  that  stated,  be  omitted  or  misstated  by  the  plaintiff, 
the  proper  mode  is  for  the  defendant  to  pray  oyer,  and  after 
setting  out  the  deed  in  hxc  verba^  to  demur. (?«)     And  in  plead- 


(e)  2  Salk.  497.     1  T.  U.  149,  150.  2.37.     Aleyn,  72.      1  Sid.  .50.  97.  425. 

Ante,  S.i(».  Biic.  Abr.  Pleas,  I.  12.     Set  llic  pi-e- 

(/)  Dou;,'.  476.       1  SiUUKl.  317.  n.  cedents,  |>ost,  vol.  2.  4S3.      1  Sauiul. 

2.  52.  and  id.  10.  n.  1. 

(§•)  U.T.  19  Geo.  III.    Doug.  227,         (./)    Id.  ibid. 
228.      3  B.  k  P.  398,  399.     1  B.  k  P.         {k)   Ld.  Uayra.  1135.     2  Saund.  CO. 

64G.  n.  b,  11.  3.  366.  i\.   I.      2T.  R.  575.      l>ae 

(A)    1  Ld.  Raym.  250.  347.      Doug.  Abr.  Picas,  I.  12. 
476.     I  T,  H.  U9.  (/)  2  \\\U.  413. 

(0   1  Saund.  9,  10.  n.   1.      6  Mod.        (w)  2  Sauud.  306.  n.  1. 

Vol.  I.  [  38  j 


416  OF  OYER. 

///.  Of  oijer.  in^  payment  or  perfomnance  of  the  condilion  of  a  bond  the  de- 
fendant should  se'  forth  the  condition  alter  craving  oycr.(n) 
But  it  is  necessary  in  an  action  on  a  bond  or  deed,  conditioned 
for  tiic  performance  of  covenants  in  another  deed,  for  the  de- 
fendant in  iiis  pica  of  performance,  to  shew  such  deed  without 
craving-  oyer.(^o) 

Where  either  the  plaintiff  or  the  defendant  omits  in  plead- 
ing any  material  part  of  an  indenture,  &c.  which  he  is   bound 
to  state,  the  only   way  by   which   the   other  party  can   relieve 
himself  is  by   praying  oi/cr  of  the  indenture,  Sec.  and  setting 
•''^   417  it  out  in  ha:c  verba,  for  he  cannot  plead,  that  by  *the  said  in- 

denture, it  was  further  agreed,  k.c.(/i) 

'io  deny  oycry  when  it  ought  to  be  granted,  is  error,  and  in 
such  case,  the  party  making  the  claim,  should  move  the  court 
to  have  it  entered  on  record,  which  is  in  the  nature  of  a  plea, 
and  the  plaintiff  may  counterplead  the  right  to  oyer^  or  strike 
out  the  rest  of  the  pleading  following  the  oyer  and  demur  ;(y) 
upon  which  the  judgment  of  the  court  is  either  that  the  de- 
fendant have  oyer,  or  that  he  answer  without  it  (r)  On  the 
latter  judgment  the  defendant  may  bring  a  writ  of  error,  for  to 
deny  oyer  when  it  ought  to  be  granted,  is  error,  but  not  e  co?i- 
vei'soSsJ 

Oyer  having  been  granted,  the  defendant  (unless  in  pleading 
performance  of  the  condition  of  a  bond)  may,  in  his  plea,  set 
forth  the  deed  on  oyer,  or  not,  at  his  election,  for  he  has  a  right 
lo  see  whether  the  plaintiff  is  in  a  situation  to  sue,  and  may  af- 
terwards plead  non  est  facium,  or  any  other  plea,  without  sta- 
ting the  oyer.U)  If  he  do  not  set  forth  the  indenture  on 
oyer,  it  seems  that   he   canuot  plead,  "  that  by  the  said  inden- 


(?j)  Pnst,  \ol.  2.  4fiO.  481.     3Keb.  (/»)  1  Saund.  317.  n.  2.     1  Stra.  227. 

708.     Tn   Lill.  Prac.  Reg.  tit.  Over,  it  (y)    1  Saund.  9.  b.  n.  1.     Bac.  Abr. 

is  said,  that  the  defendant  may  plead,  Pleas,  I.     2  Salk.  498.     2  Ld.  Raj  m 

if  he  please,    v,  itliout  oyer ;    for  he  970.     2  Lev.  142.     6  Mod.  2S. 

may  take  upon  himself  to  remember  ()■)  Id.  ibid.     2  Lev.  142.     6  Mod. 

flic  bond  without  hearing  it  ;    but  see  2S. 

Hutt.   33.    iKeb.  513.    1  Saund.  317.  (s)   1    Saund.    9.    b.  n.    1.     Tidd's 

n.  2.     Com.  Dig.  Pleader,  2.  W.   33.  Prac.  4th  edit.  522.     Bac.  Abr.  Pleas, 

A'in.  Abr.  Oyer,'  D.  I.  12. 

(o)    Ante,    post,    vol.   2.   483.      I  (?)    2    Stra.    1241.       1    Wils.    97 

Saund.  10.  n.  1.     Com.  Dig.  Pleader,  Barnes,  327. 
'2.  W.  33.     6  Mod.  237. 


OF  OYER.  417 

"  ture  it  was  further  aj^reed,"  8cc.(i/)     And  if  it  be  -material  ///.  Of  oijer. 
for  the  plaintiff  to  shew  the   indenture,  he  may  pray  un  enro  1- 
ment,  and  so  make  it  part  of  his  replication. (r)     If  the   oyer 
be  stated  the  *p!ea  should,  in  strictness,  be  entitled  of  the  same  *    418 

term  as  the  declaration,  for  in  contemplation  of  law,  the  deed, 
unless  denied,  is  in  court  only  during  the  term  in  which  it  is 
pleaded,  and  is  afterwards  in  the  custody  of  the  party  to  whom 
it  belongs,  and  therefore,  oi/er  of  such  deed  ouglit  not,  in  plead- 
ing, to  be  stated  to  have  been  demanded  in  a  subsequent 
term  ;(to)  and  consequently  not  after  a  general  ifnparlancc.(x) 
But  oyer  may  be  craved  after  a  special  imparlance  to  another 
day  in  the  same  term  ■■,nj)  and  there  are  precedents  where  oyer 
has  been  craved  after  the  statement  of  an  imparlance  ;(2:)  and 
where  the  plaintiff  declares  in  vacation,  before  the  essoign  day 
of  the  following  term,  perhaps  with  analogy  to  the  claim  of 
conusance  and  pleas  in  abatement,  a  plea  stating  the  claim  of 
oyer  may  be  entitled  of  a  term  subsecjuent  to  the  declaration 
with  a  special  imparlance,  or  which  may  be  most  advisable, 
may  be  entitled  generally  of  the  preceding  term.(o)  If  the 
defendant  assume  to  set  out  the  whole  of  the  deed  or  condition 
of  a  bond  on  oyer,  the  whole  should  be  stated  with  all  the  re- 
citals verbatim  et  literatim  ;  and  if  the  defendc,nt  do  not  set  forth 
the  whole,  or  state  it  untruly,  the  plaintiff  may  sign  judgment 
as  for  want  of  a  plea  ;(6)  or  may,  by  his  replication,  pray  that 
*the  deed  be  enrolled,  and  set  it  forth  and  demur,  for  by  craving  ^  419 
oyer  the  defendant  undertakes  to  set  out  the  whole  ;(c')  but  in 
pleading  to  a  bond  conditioned  for  the  performance  of  covenants 
in  another  deed  distinct  from  that  set  out  on  oyer,  though  the 
party  must  state  the  indenture  truly,  or  subject  his  plea  to  a  de- 


(?t)  1  Saun<'.  317.  n.  2.     3  Keb.  708.  ace.     2  I.d.  Raym.  970.  co7j?T-a.     And 

Hutt.  33.     I  Ktb.  513.     Ante.  see  the  precedents,  1  Saimd.  3.  ii89. 

(t))  2   Stra.    1'2-U.     I    Wils.  97.     I  (z/)  l'.i  Mod.  99.     2  Show .  310. 

Saund.  9.  b.  n.  1.  ace.     Barnes,  327.  (i)  1  S.iund.  3.  289. 

contra.  (")  2  Wils.  411,  412.     1  T.  R.  278. 

(vy)  5  Co.   74.  b.     1  T.  R.    149.     2  7  T.  R.  447.  n.  d.     2  Saund.  2.  n.  2. 

Luiw.  1644.  Ante,  407.     Post.  vol.  2.  406, 407. 

(x)   2  Saund.  2.  n.  2.     Yin.  Abr.  (6)  1    Saund.  9.   b.   n.  1.     4  T.  R. 

Oyer,  F.     Bat.  Abr.   Pleas,  I.  12.     2  370.     Slater  r.  Home,  Tidd's  Prac, 

Lev.    l4-.i.     Freera.   400.     1  Keb.  32.  3d  edit.  506.     4lli  edit.  497. 

3  Keb.  480.  491.     0  Mod.  28.  see  Uie  (c^  Com.  Di<<.  Pleader,  P.  1.     4  "C . 

form,    3  BL  Com.  Appendix,  Nfj.   3.  Ti.  370.  r.  b      1   Sannd.  9  b.  n   1 


419  OF  OYER. 


///.  Of  ouei:  niurrer,  and  the  practice  is  to  set  forth  the  whole  (leecl,(fi)  it  may 
perhaps  suffice  lo  sluie  the  substance  of  the  deed,  and  those 
covenc.nis  only  which  he  has  engaged  to  perform,  averring  that 
the  indenture  cont.ans  no  other  covenants  on  his  part,(£')  or 
perhaps  even  an  allegation  that  the  indenture  contains  no  ne- 
gative or  disjunctive  covenants  with  an  averment  of  general 
performimce  would  be  sufficient ;(/)  and  the  plaintiff  might 
pray  oyer  and  set  it  forth  if  untruiy  statcd.(.§') 

When  oyer  is  prayed  of  a  bond  and  the  condition,  it  is  usual 
in  practice  not  to  set  forth  the  bond,  but  to  say  ''  and  it  is  read 
"  to  him."  Sec.  and  then  to  priy  oyer  oi  the  condition,  and  set  it 
forth  in  /uec  verba,  but  the  bond  oui^-ht  to  be  entered  at  large  as 
well  us  the  condiiion,  if  the  terms  of  the  obligatory  part  be  ma- 
terial to  the  defence  ;(//)  so,  if  it  be  inuteiial  to  the  plaintiflthat 
the  penal  part  of  the  bond  be  set  forth,  he  may  in  his  icplica- 
tion  pray  that  it  may  be  emclled  and  set  it  forth. U)  if  no 
use  is  intended  to  be  mi  de  of  the  bond  there  is  no  need  to 
4-U  pr.,y  oy,-,.  Qf  *[i  ^t  iiU^  or  to  enter  any  such  prayer,  but  it  is 
sufficient  to  pray  oyer  of  the  condition  only,(/)  for  the  bond  and 
condition  are  considered  as  distinct,  the  bond  i>eing  complete 
without  the  condition,  therefore  there  may  be  oyer  of  .one  with- 
out the  other,(^-)  and  praying  oyer  of  one  does  not  entitle  the  party 
to  oyer  of  the  other,  but  it  must  be  demanded  of  both  if  mate- 
rial to  the  defence. (/)  If  tlie  dec<\,  kc.  be  set  forth  on  oyerj 
the  court  must  adjudge  upon  it  as  p.-trcel  of  the  record,  tliough 
it  were  nut  strictly  deni.:ndable  at  the  lime  of  granting  it.(??i) 
And  if  it  thereby  appear  to  the  court  that  tiie  defendant  has 
pleaded  a  filse  pica,  the  court  will  give  judgment  for  the  plain- 
tiff upon  a  demurrer  to  the  p!ea  :(?;)  so  on  the  other  hand,  the 
defendant  by  craving  oyer  and  setting  it  out  in  his  plea,  may 
sometimes  aid  a  defect  in  the  declaration,  as  where  the  declara- 


{(!)  \  Sriur.d.  9.     4  East,  S'ii,  345.  (.')  Lib.  Plac.  209.  pi.  220.  1  Saund. 

(.-)  1  Saiiiid.  .31".  n.  2.  «.  1)  n.  1. 

(/)  4  East,  340.  344.  n.  f.     See  the  (A)  I  Samxl.  9.  b.  n.  1.  290.  n.  2. 

precedent,  post,  vo!.  2.  484.  (/)  6  Mod.  237.     1  Saund.  9.  b.  n.  1, 

(/>•)  1  Saund.  9.  b.  n.  1.3:7.  11.2.  {in)    1    Saiind.   3J6,   317.    3  Salk. 

(/';)    Lti.    Uay.n.    1135.     Aul.,  415,  119.     Cartb.  513.     6  Mod.  27.    Doug, 

4iri.  4rfi. 

(/)  Garth.  301,   302.     1    LuUv.  GSO.  (n)  1   Saund.  S.  317.  n.  2.     3  Salk. 

686.     1  Sauud.  9.  b.  a.  1.  119 


m 


OF  IMPARLANCES-.  420 

tion  was  upon  a  certain  writing,  and  the  defendant  by  praying  111.  Of  oijer. 
oyer,  conditiones  s  cri/iti  obligatorii  Jirxdkti  admitted  it  to  be  a 
bond.(o) 


ir.  IMPARLA.XCES. 

Tlie  term  imharlance,  or  licentia  loquendi  in  its  most  general  TV.  Lnpavlan- 

ces. 
signification,   meivns  time  given  by  the  court  to  either  party  to 

answer  the  pleading  of  his  opponent,  as  either  to  plead,  reply, 
rejoin,  &.c.  and  is  said  to  be  nolhing  else  but  the  continuance 
of  the  cause  till  a  further  day.(//)     But  the   *more  common  ^^^ 

signification  of  the  term  is  time  to  plead. (7)  In  making  up 
the  issue  joined  between  the  parlies,  and  in  which  all  the  pro- 
ceedings are  necessarily  stated,  an  entry  of  an  imparlance  be- 
tween the  declaration  and  plea,  is  frequent  and  sometimes  ne- 
cessary ;(r)  but  it  is  not  usual  in  framing  a  plea  or  replication 
separately  to  state  an  imparlance,  unless  some  new  matter  has 
arison  since  the  former  pleading,  when  it  may  be  proper  (s) 

Imparlances  are  of  three  descriptions  :  1st.  A  common  or 
general  imparlance  ;  2dly.  A  special  imparlance,  and  3dly.  A 
general  special  impariance.(;)  The  Jirst  is  without  saving  to 
the  defendant  any  exception  against  the  writ,  jurisdiction,  &c. 
and  is  always  to  a  subsequent  term.(«)     In  making  up  the  is- 


(o)  Lil.  Raj  m.  1541.  Cro.  Ciir.  209.  {q)   2  Saund.    1.  n.  2.      2   Show. 

(//)  Bac.  .\br.  Pli-as.  G.     ScL-Com.  310.     Barnes,  34G. 

»i-      Pleader   D.  and  id.  ibid.  1  Sell.  (r)  2.  Saund.    I.  n.   2.     5   Co.  75. 

Prac.  ch.   7.  sect.  3.  2  Samv.i.  1.  n.  2.  Tidd's  Pi-ac.  4tli  edit.  C18. 

as  t'>  ihe  nature  of  inipa:-l,nces  in  g,e-  («)  See  the  form  in   a  plea,    post, 

neral.      In    Doct.    Plac.     lit.     Iinp.u*-  vol.  2.  403.  and  ia  a  replication,  ibid. 

lance,  it  is  thus  defined,  "  ?m/;tt?\'(/«ce  5'J.''.     After   issue,   anv   new    matter 

est  qnando  ipse  defhideiis  petit  licen-  must  be  ple;;dcd  puis  darrein  conti- 

tiam  intefloc;neiidi,  scilicet,   quani   le  miance.     See  precedents,  post,  vol.  2. 

d-J'cndant  dt^sire  le  cour  da  donar  a  676. 

!iiti  temps  de  (deader  al  suit  ou  action  {t)  2  BI.  Rep.  1095,    1096.    and  as 

que  est  cammence   vers  lay.     B'jfore  to  the  diflcrent  kinds  of  imparlances, 

diclai-ation  the  continuance  is  by  <Ues  and  M-hen  and  how  granted,  and  what 

datvs  prcce  partium  ;  after  declira-  may  or  rn;<y  not  be  done  after  each, 

tion  and  before   issue  joined,  by  ini-  sec  2  Saund.  1.  ii.  2.  TiJd's  Prac.  4th 

j)arlance  ;  after  issue  joined  and  be-  edit.  406. 

fore  verdict,   by    Vicecomcs  non  imsJt  {n)  G  .Mod.  2S.     2  Saund.  2.  a.  See 

br,t<e  ;  and  after  verdict  or  demurrer  the  forms,  post,  \q\.  2.   405 . 
by  curia  aJvisare  vult. 


421  OF  IMiPARLA^XES. 

ki'nce?"'^'  ^^'^'  ^^'^  ^^''^  ^^^^  ^^^'^^  ^^^  ^"^^y  of  such  an  imparlance,  may 
be  necessciry  in  order  to  continue  the  cause  in  court  ;(x)  but 
422  in  framing  *a  plea,  such  an  entry  of  imparlance  is  not  necessa- 
ry, unless  where  the  matter  of  defence  has  arisen  after  the 
decUiration.(.v)  In  general,  pleas  in  bar  are  entitled  of  the  term 
of  which  they  are  pleaded,  without  reference  to  the  title  of  the 
declaration,  and  as  a  plea  of  tender  may  be  after  such  an  im- 
parlance, the  plea  may  be  entitled  of  a  term  subsequent  to  the 
declaration,  though  it  is  said  to  be  more  correct  to  entitle  it  of 
the  same  term  as  the  declaration. (z)  After  the  entry  of  such 
a  general  imparlance,  the  defendant  may  plead  in  bar  of  the 
action,  but  not  in  abatemait  or  to  Xhe  jurisdiction  of  the  court : 
and  therefore  when,  by  the  practice  of  the  court,  the  defend- 
ant is  at  liberty  to  plead  in  abatement  in  a  term  subsequent  to 
the  declaration,  (as  occurs  where  the  process  is  returnable  on 
the  last  return  of  the  term,  or  even  before,  when  the  plaintiff 
has  neglected  to  deliver  or  file  his  declaration  four  days  ex- 
clusive before  the  end  of  the  term,  or  has  neglected  to  declare 
before  the  essoign  day  of  that  term,)  the  defendant  must  plead 
such  plea  in  abatement,  eitlier  of  the  same  term  as  the  decla- 
ration, or  of  the  subsequent  term  with  a  special  imparlance  ; 
and  if  it  be  pleaded  of  the  latter,  the  plaintiff' may  sign  judg- 
„  ment  as  for  want  of  a  plea.(a) 

A  sfiecial  imfiarlaiicc  is  with  a  saving  of  all  exceptions  to  the 
writ,  bill  or  count,  and  after  this  imparlance  the  defendant  may 
plead  in  abatement,(<^)  but  not  to  the  jurisdiction  of  the  court, 

*   423  *unless  founded  on  a  personal  privilege,  as  that  of  an  attorney, 

Scc.(c)  In  cases  where  the  defendant  is  entitled  to  a  special 
imparlance,  it  is  in  the  Common  Pieas  granted  of 'course  by  the 
prothonotary,  u])on  an  application  to  him,  within  the  first  four 
days  of  the  term  subsequent  to  that  of  the  declaration,  but  in 
the  King's  Bench  it  is  said  to  be  grantable  only  by  leave  of  the 


(x)  Supra,  n.  r.  (6)  1  Lutw.  G.  and  Bac,  Abr.  Plea?, 

Iv)  Post,  vol.  '2.  405,  406.  C.  4.     2  Bl.  Rep.  1095. 

(:)  '2  Suiiiid.    1.   n.   -2.      Run-.  59.  (c)  Hard.  365.      Bac.  Abr.  Picas, 

Tidd's  Prac.  4lli  edit.  408.  C.  4. 

(r/j^Suund.  1.   M.   2.   4T.  K.  520. 
6  T.  li.  jG9.     7  T.  R.  447.  n.  d. 


OF  IMPARLANCES.  423 

court  obtained  by  a  side  bar  rule,  (rf)      In  both  courts  the  spe-  f^"-  /'"/"w^- 

'  ...  lances. 

cial  imparlance  must  be  stated  in  the  plea,  when  it  is  enlitled 

of  tlie  term  subsequent  to  the  declaration. (f) 

The  (Aird  description  of  imparlance,  usually  denominated  a 
gmeral  sfiecial  imparlance,  is  Avith  a  saving  of  all  exceptions 
whatsoever,(/)  and  can  only  be  obtained  by  an  application  to 
the  court,  on  motion,  within  the  first  four  days  of  tl-.e  next  term 
after  the  declaration  ;  and  it  is  in  the  discretion  of  the  court? 
governed  by  the  particular  circumstances  of  the  case,  to  grant 
it  or  not,  and  tliey  will  not  grant  it  in  order -to  enable  the  de- 
fendant to  plead  to  the  jurisdiction  if  he  has  appeared  by  attor- 
ney ;  the  prothonotary  has  no  power  to  grant  this  description 
of  imparlance,  and  a  plea  under  a  grant  by  him  would  be  a 
nullity,  and  the  piaintiff  might  sign  judgment,  or  at  least  a  res- 
pondcas  0M.s/'(?r  might  be  awarded. (^)  This  imparlance  having 
been  obtained,  the  defendant  *may  not  only  plead  in  abatement  4-24 

of  the  Avrit  or  count,  but  also  personal  privilege. (//)  In  point 
of  form  this  imparlance  is  similar  to  the  last,  with  the  exception 
of  the  words  "  savivg  to  himself  all  advantages  and  excrjitions 
"  w/iatsoever"  and  sometimes  in  addition  to  those  words  the 
following  are  added  :  "  as  well  to  the  nvrit  and  declaration  as  to 
"  the  jurisdiction  of  this  court  ;"{i)  but  the  first  is  the  better 
form. 

If  the  defendant  plead  to  the  jurisdirtion,  or  to  the  disability 
of  the  plaintiff,  or  defendant,  to  sue  or  be  sued,  after  a  general 
imparlance,  or  to  the  jurisdiction  after  a  special  imparlance, 
the  plaintiff  may  in  general  either  sign  judgment  or  apply  to 
the  court  to  set  aside  the  plea,  or  he  may  demur  to  it,  or  allege 
the  imparlance  in  his  replication  by  way  of  estoppel  ;  but  if  the 
plaintiff  instead  of  taking  any  of  these  advantages  reply  to  the 
special  matter  of  the  plea,  the  fault  is  aided. (/:) 


(</)  2B1.  Rep.  1094.     2  Saiind.   1.  (/)Seethe   form,  post,  vol.  2.  408. 

n.  2.     R.  E.  5  Ann.  (g)  2  Sauntl.  1.  n.  2. 

(e)  4  T.  R.  520,  521.     fi  T.  R.  369.  (/j)  Id.  ihid.    1  Lev.  54. 

7  T.  R.  44r.  in  which  1  Rl.  Rej).  51.  {i)  2  J31.  Rep.  1094.    2  Sauntl.  1.  n 

1  Wils.  261.  were  overruled.    See  the  2. 

precedents,  post,  vol.  2.  40G,  40",  408,  {k)    2,  Saund.   1.    n.    2.        Tidd's 

2  Saund.  I.  n.  2.  Prac.  4th  edit.  408. 


4^5 


CHAPTER  VI. 


Order  of 
pleading. 


*  426 


'       OF    PLEAS    TO    THE    JURISDICTIOK,   AND    IN    ABATEMENT,   AND 
THE    PUOCEEDINGS    THEUEON. 

X  HE  law  has  prescribed  and  settled  the  order  of  pleadinj^ 
which  the  defendant  is  to  pursue,  viz. 

Is^   To  the  jurisdiction  of  the  court : 
Idly.   To  the  dimbility,  ifc.  of  the  Jierson. 

^  1st.   Of  /he  plaintiff; 

\2dly.   Of  the  defendant, 
odly.   To  the  count  or  declaration  : 
«^  4thly.   To  the  ivrit. 

fist.   To  the  form  of  the  writ. 

•         f  \st.  Matter  apparent  on  the  face  of  it. 

)         \  Idly.  Matter  dehors. 

\j2dly.    To  the  action  of  the  writ.  ^^ 

^Sthly.   To  the  action  itself  in  bar  thereof  (^c/^ 

This  it  is  siiid,  is  the  nutural  order  of  pleading,  because  each 
subsequent  plea  admits  that  there  is  no  foundation  for  the 
former,  as  when  the  defendant  pleads  to  the  person  of  the 
plaintiff,  he  admits  the  jurisdiction  of  the  court,  for  it  would  be 
nugatory  to  plead  that  defence  in  a  court  *which  has  no  juris- 


(n)  Per  Hclt,  Ch.  J.   2  Lfl.  Rayin.         Gilb.  C.  P.  49.     Doc.  Plac.  in  pre- 
J70.  Latch.   178.  Co.   Lit.  303,  301.    face.    Com.  iYii^.  Abattinent,  C. 


OF  PLEAS  TO  THE  JURISDICTION.  426 

xliclion,((!i)  and  when  the  defendant  pleads  to  the  count  he  ad-  -^  Onler  of 

mits  that  the  plamtift'  is  able  to  sue  him,  and  the  defendant  to     '' 

be  sued ;  and  when  the  defendant  pleads  to  the  form  of  the 

writ,  he  admits  the  form  of  the  count,  and  after  a  plea  in  bar  to 

the  action,  the  defendant  cannot  plead  in  abatement,  unless  for 

fliatter  arising  after  the  commencement  of  the  suit.(c) 

If  this  order  of  pleading  be  inverted,  the  defendant  will  be 
precluded  from  pleading  any  matter  prior  in  point  of  order.Crf) 
And  this  is  material,  for  though  it  is  said  that  after  a  judgment 
of  res^iondeas  ouster  there  can  be  no  plea  in  abatement,  be- 
cause if  it  were  allowed,  there  would  be  no  end  of  such 
pleas  ;(e)  yet  this  iBust  be  understood  of  pleas  in  abatement  in 
the  same  degree,  as  popish  recusancy  and  outlawry,(/)  which 
are  both  to  the  person,  for  the  defendant  may  plead  to  the  per- 
son of  the  plaintift",  and  if  that  be  overruled,  he  might  afterwards, 
fin  time,  plead  to  the  form  of  the  writ.(,§') 


*/,  OF  PJ.EAH  TO  THE  JUIilSDJCTIOJY.  ^     .^ 

*  427 

Pleas  of  this  description,   though  in  effect  they  abate  the  /.  Of  pleas  to 
'writ,  yet  differ  from  pleas  in  abatement,  principally  in  three  •?"''"'^^f''««. 
points,  viz.  that  they  roust  be  pleaded  in  person,  and  only  half 
-lefence  should  be  made,  and  they  should  conclude  si  curia  cog- 
loscere  x'clit  and  not  (juod  billa  cassetur. (^Ii)     Objections  even  to 


(i)   In  infvior    courts,   liowever,  (f/)    Co.    Lit.    303.       Com,     Dig. 

.liisdoes  not  obtain,  for  if  such  coiu-t  Abatement,  C.     Doct.  Plac.  Preface. 

^lave  not  jurisdiction  over  the  subject  (e)    Bac.    Abr.    Abatement,    O. — 

;nutt(;r,  it  will  be  a  ground  of  nonsuit  Giib.  C.   P.  186.     2   Saund.  401.     12 
on   the   trial,   1   T.    R.   151.     And  if    Mod.  230. 

there  be  a  total  want  of  jurisdiction  (  /")  Hetl.  126. 

in  any  of  the  courts  in  England,  the  {g)  Com.  Dig^.    Abatement,/.  3,  4- 

matter   may  be    pleaded   in   bar   or  Bac.  Abr.  Pleas,  K.  1. 

given  in  evidence  under  the  general  {h)  Rac.  Abr.  Pleas,  E.  2.  and  title 

is.sue,  even  in  an  action  in  the  snpe-  Abatement,  5  Mod.  146.    1  Salk.  298. 

rior  courts  at  Westminster.     6  East,  3  Bl.  Com.  301.     As  to  pleas  to  the 

.'iSS.     1  East,  352.     Bac.  Abr.  Pleas,  jurisdiction    in  general,    see  claim  of 

£.  1.     And  see  post.  conusance,   ante,    403  to  410.     Com. 

(c)    Giib.   C.    P.    50.     Com.  Dig.  Dig.  Abatement,  D.  Bac.   Abr.  Pleas, 

\batement,  C.    I.  23,  2i.  E.  8t  Courts,  D.  Sc  Giib.  C,  P.  187  lu 

197. 

Vol.  I.                                [  59  ] 


427  OF  PLEAS  TO  THE  JURISDICTION. 

J.  Of  picas  to  the  jurisdiction  of  the  superior  courts  jnay  in  some  cases  be 
■*'''  '""  '  ■  taken  under  the  general  issue,  but  in  general  they  must  be 
pleaded.  In  all  transitory  actions,  and  in  local  actions  arising 
in  England  or  Wales,  if  there  be  no  plea  to  the  jurisdiction,  the 
courts  of  Westminster  may  in  general  hold  plea  thereof ;(«) 
though  it  has  been  doubted  whether  when  an  assault  was  com- 
mitted in  Fy-ance  or  elsewhere  out  of  the  king's  dominions,  an 
action  can  be  supported  even  in  the  courts  at  Westminster, (J) 
and  where  a  trespass  has  been  committed  to  lands  in  a  foreign 
country,  no  action  can  be  sustained  in  the  English  courts,  un- 
less there  be  no  court  Avhich  could  afford  redress  in  the  coun- 
try where  the  cause  of  action  arose. (^)  And  where  a  court 
has  no  jurisdiction  at  common  law,  or  it  has  been  taken  away 
by  act  of  parliament,  such  want  of  jurisdiction  may  be  pleaded 
*^  428  in  bar,  or  be  given  in  evidence  under  the  general  *issue,  and  is 

not  properly  the  subject  of  a  plea  in  abatement. (/)  And  it  has 
been  recently  decided  that  where  a  public  statute  for  erecting  a 
court  of  inferior  jurisdiction  enacts,  that  no  action  for  any  debi 
not  amounting  to  forty  shillings.  Sec.  and  recoverable  by  thaL 
act,  shall  be  bi'ought  against  any  person  residing  within  the 
jurisdiction,  &c.  such  statute  is  a  defence  upon  the  general 
issue  to  a  party  bringing  himself  within  it,  who  is  sued  in  the 
superior  courts. (?«)  In  other  cases  the  statutes  giving  a  pecu- 
liar jurisdiction  require  that  it  shall  be  pleaded  in  bar,  in  case 
the  parties  claiming  the  privilege  shall  be  sued  elsewhere  ;  and 
others  direct  that  a  suggestion  shall  be  entered  on  the  roll. 
The  methods  pointed  out  by  the  respective  statutes  must  be 
strictly  pursued. (?0 

In  most  of  the  inferior  courts  the  want  of  jurisdiction  is  fatal 
to  the  suit  without  any  pica  stating  the  objection,  for  the  cause 
of  action  must  be  alleged  to  have  arisen  within  the  jurisdiction, 


(/)  Andr.  108.  1  Woodd.  193.   Bac.  {>n)  1  East,  SiVi. 

Abi-.  Pleas,  E.  1.  (?()  Per  Ld.   Kenyon,   I  East,  354. 

(y)  1  Cowp,  176.  but  see  ante,  269.  See  the  observation  on  several  of  tlie 

ji.  (i).  statutes,  and  tlie  mode  of  proceedings 

(^■)  4.  T.  R.  503.   Anic,  269.  n.  (j).  in  Tidd's  Prac.  3d  edit.    872   to    S7~ 

6  East,  5  S3.  599.  4th  edit.  856  to  860. 


(/)  6  East,  583.     1  East,  352.    4  T. 
'R.  508. 


% 


<* 


OF  PLEAS  TO  THE  JURISDICTION.  42S 

^)^  a  writ  of  false  judgment  may  be  supported  ;  and  if  the  fact  7.  Of  plea/)  to 

.     ■  r^  1  ,  jurisikction. 

be  so  alleged  but  not  proved,  the  plumtiff  ought  to  be  non- 
suited on  the  general  issue  ;  and  if  the  inferior  court  admit 
the  jurisdiction,  a  bill  of  exceptions  may  be  tendered,  or  a  pro- 
hibition issued. (o)  In  these  cases,  however,  *the  defend-  ^  429 
ant  may  plead  to  the  jurisdiction,  which  seems  to  be  the  safer 
course,  (/i) 

We  have  already  seen  that  the  defendant  can  only  plead  to 
the  jurisdiction  where  the  grant  to  the  inferior  court  \ii&  habere 
cognitionem  /ilacitorum  with  exclusive  words  et  non  alibi.  In 
this  case  the  plea  cannot  be  in  bar.  At  common  law  there 
was  a  distinction  between  a  foreign  plea  and  a  plea  to  the  ju- 
risdiction, A  foreign  plea  was,  where  the  action  was  carried 
out  of  the  county  or  place  where  the  venue  was  laid.(7)  An- 
cient demesne  and  all  pleas  of  privilege  are  pleas  to  the  juris- 
diction, and  not  foreign  pleas. (r)  It  was  always  necessary  be- 
fore the  statute  of  jlnne^  to  verify  a  foreign  plea  by  affidavit, 
but  not  a  plea  to  the  jurisdiction. (s) 

Pleas  to  the  jurisdiction,  when  the  objection  cannot  be  other- 
wise taken,  are  either  in  local  or  transitory  actions.  The  de- 
fendant may  in  local  actions  plead  to  the  jurisdiction  when  the 
cause  of  action  accrued  in  a  jurisdiction  where  breve  domini  re- 
rris  7ion  currit.(t)  Therefore  he  may  plead  that  the  lands  are 
ancient  demesne,  holden  of  the  king's  manor,(«)  or  that  the 
cause  of  action  *arose  in  JVales  ;(w)  but  since  the  Wels/i  judi-  ■5jf  430 
•aturc  act,  this  plea  has  not  been  so  frequent.(:r)     So  it  may 


(0)  Gilb.  C.  P.  I8S,  189.  Bac.  Abr.  CO  Bac.  Abr.  Courts,  D.  r,.     Cilh. 

Picas,  E.  1.  Courts,  D.  4.     1  Saund.  C.  P.  191.     1  Wils.  20G.     3  East,  1-23. 

'JS.  n.  1.  (h)  Com.    Dig.  Abatement,    D.  1. 

(p)  Bac.  Abr.  Courts,  D.  4.     See  L4.   Kajm.   1418.     1  Salk.   56.      Sec 

'he  precedents  of   plea  and   replon,  t/ie  precedents  in  Ilerne,  351.     Rast, 

I  Wentw.  51.  60.  60.  rs.  k  I  AVeutv.-.  Ent.   101.      Tliorap.    Eiit.  2.      ]\Io(I. 

iadex.  Lit.  Ent.  475.  Ent  249.     S  Inst.  C.  S,  9.     Mans.  103. 

C«7)    1  Saund.  9S.n.  1.     Carth.  402.  1    \Yentw.  51.  and   sie    other  foring 

Vin.  Abr.  tit.  Foreign  Pleas.    See  t!ie  and  reiilications.     1  Vv'entw.  Index, 

precedent,  Lil.  Ent.  475.  (-.; )  Com.   Dig.  Abatement,  D.  2. 

()•)  Vin.  Abr.  lil.  Foreign  Plea',  A.  1  Wils.    193.      Doug;.   213.      See  th- 

11.     5  Mod.  335.  precedents,  IWentw.   45.   49.  CS.     I 

(s)  1  Saund.  98.  n.  1.      Carth.  402.  Wils.  193. 

*'in.  .\br.  Forci-^n  Ple.-is.  5  Mo^l.  ~  v'.  (.r)    13   Geo.    III.  e.  51,       t  New 

!?;;>.  267.     fiT.  H.  5n'V 


^ 


430 


OF  PLEAS  TO  THE  JURISDICTION. 


7.  Of  pleas  to  bc  pleaded  that  the  cause  of  action  arose  in  a  county  palatine,(9) 

finisdistion.  .,         .  .,n  •       t      j      ,  \         '         .u 

or  m  the  cinque  ports,(z)  or  in  I.o7idon,{a)  or  any  other  ex-. 

elusive  jurisdiction  ;(/))  but  Ehj  is  not  an  exempt  jurisdiction 
though  the  bishop  may  demand  conusance.(c)  It  has  been 
held  that  it  may  be  pleaded  in  a  local  action  that  the  lands  are 
out  of  the  realm  ;(f/)  but  as  this  might  be  pleaded  in  bar,  or  be 
given  in  evidence  under  the  general  issue,  it  is  unnecessary 
to  plead  such  matter  in  abatement. (e)  In  ejechnait  the  real 
defendant  being  obliged  on  appearing  to  enter  into  the  consent 
rule  and  to  plead  the  general  issue,  can  only  plead  to  the  jvuis- 
diction  with  leave  of  the  couit.(/) 

In  all  transitonj  actions  the'courts  at  Westminster  have  juris- 
diction unless  taken  away  by  particular  acts  of  parliament,(,§-) 
and  with  the  exception  in  favour  of  the  universities  of  Oxford 
and  Cambridge,(^/i)  unless  the  plaintiff  by  his  declaration  shews 
*^  431  that  the  action  accrued  in  an  exclusive  *jurisdiction,  no  objec- 
tion to  that  of  the  superior  courts  can  be  taken  ;(?)  and  if  the 
declaration  disclose  the  fact,  still  the  defendant  cannot  demuv 
or  move  in  arrest  of  judgment,  but  must  plead  to  the  jurisdic- 
tion ',{j)  and  it  is  said  that  there  are  no  pleas  to  the  jurisdiction 
of  the  courts  at  Westminster  in  transitory  actions,  luiless  the 
plaintiff  by  bis  declaration  admits  that  the  cause  of  action  ac- 
crued in  a  county  palatine ;  it  is  however  presumed,  that 
these  cases  are  only  put  as  instances,  and  that  if  it  appeared 
on  the  face  of  the  declaration  that  the  cause  of  action  arose  in 


Ci')  Com.  Dig.  Abatement,  D.  2. 
See  the  precedaits.  East.  Eiit.  419. 
Hcrne,  7.  3  Inst.  CI.  14.  1  Wentw. 
49. 

(r)  Com.  Dig.  Abatement,  D.  .3. 
4  Inst.  2'24.  Jenk.  190.  Keilw.  88. 
See  the  precedent.  Bi-o,  Red.  475. 
;in(l  1  Wentw.  Index. 

(a)  3  Leon.  148. 

(6)  Brn.  Abr.  Conusance,  52.  1 
Bl.  Kep.  197.  See  the  precedents.  1 
Wentw.  Index. 

(r)  Carth.  lOy.  f?alk.  183.  3  E.nst, 
12!^.  13S. 

(</)  Show.  10!.  1  Salk.  SO.  Com. 
lYia.  Abatement,  ]).  3. 


((?)  6  East,  15  83.  4  T.  R.  503.— 
xinte,  42S. 

(/)  BI.  Rep.  197.  3  Wils.  51.  2 
Sti-a.  1120.     8T.  R.  474. 

(_§)  Bac.  Abr.  Courts,  D.  3.  See 
the  difrbrent  statutes  referred  to» 
ante,  428.  n.  (n). 

(A)  Bafe'Abr.  Courts,  D.  3.  Gilb. 
C.  P.  191.  Woodd.  Inst.  520.  Yin. 
Abr.  tit.  University,  K. 

(t)  4  Inst.  213.  I  Sid.  103.  Gilb. 
C.  P.  191.     Bac.  Abr.  Courts,  D.  3. 

(./■)  Cartli.  11.  354.  Bac.  Abr. 
Cloiirt,  I).  3.  Cilb.  C.  P.  191.  5 
Mod.  144. 


OF  PLEAS  TO  THE  JURISDICTION. 


431 


any  other  exempt  jurisdiction,  a  plea  to  the  jurisdiction  /  Of  pleas  t» 
might  be  pleaded. (A)  Some  pleas  in  abatement  arising  from  J"'""'*^'*""- 
firivilege  of  fierson  may  be  classed  under  pleas  to  the  jurisdic- 
tion, in  respect  of  their  affecting  the  jurisdiction  of  the  court, 
und  concluding  whether  the  court  ought  to  have  further  conu- 
sance of  the  suit ;(/)  as  where  an  attorney  or  offic^  of  a  par- 
ticular court,  a  tinner,  or  sciiolar  of  the  universities,  is  sued 
out  of  the  proper  court.  But  these  will  be  inquired  into  when 
we  consider  pleas  in  abatement. 

Where  a  person  is  wrongfully  sued  in  an  inferior  court,  he 
must  tender  his  plea  to  the  jurisdiction  /«  jirofiria  fiersona  se- 
dente  curia,  and  make  oath  of  the  truth  thereof ;  and  if  the  in- 
ferior *court  will  not  accept  his  plea,  he  may  have  a  prohibi-  ^  4,32 
iion  from  one  of  the  common  law  courts  at  Westmitister,  or  in 
vacation  from  the  court  of  chancery. (w)  In  the  auficrior 
courts,  a  plea  to  the  jurisdiction  must  be  pleaded  within  four 
days  after  declaralion,(?z)  and  generally  before  imparlance  ;(o) 
it  should  be  entitled  of  the  same  term  as  the  declaration, (/i) 
must  be  pleaded  in  person  and  not  by  attorney,  because  the 
latter  would  admit  the  jurisdiction  of  the  court,(9)  and  for  the 
same  reason  full  defence  ought  not  to  be  made,  but  only  half 
defence,  though  the  words  "  ivhen"  Sec.  will  suffice. (r)  After 
stating  the  appearance  and  defence,  the  plea  may  proceed  at 
once  to  shew  the  defect  of  jurisdiction  without  any  prayer,  si 
curia  cognosccre  vcUt,  Scc.(&) 

In  all  pleas  to  the  jurisdiction  of  the  superior  courts,  it  must 
be  shewn  that  there  is  another  court  in  which  effectual  justice 


(A-)  See  I  ^\"\U.  103.  See  tlie  pre- 
cedents oil  U'ausitory  actions,  1  Wils. 
193.     1  Weiitw.  45.  49.  68. 

(?)  See  tlie  precedents.  8  T.  11G31. 
Com.  Dig.  .\b;itement,  D.  4.  Bac. 
Ab:'.  tit.  Abatcracut,  C  tit.  Pleas,  E. 
'2.  Lutw.  45.  039.  2-2  Yi:i.  9.  3  T. 
R.  ISt).  5  Mod.  140.  Gilb.  C.  P. 
208,  209.  cited  5  Mod.  335. 

(w)  I  Saund.  98.  n.  1.  6  Mod.  140. 
Bac.  \\>T.  Pli  as,  E.  lit.  Coiirlii,  I).  4. 
tit.  Pleas,  E.  1.     .\nte,  4'JH. 

(n)  8  T.  U.  474.  rium.  Di<,>-. 
Abatement,  D.  9. 


(0)  Ante,  422.  Com.  Dig.  Abate- 
ment, D.  y,  Gilb.  C.  P.  ISr.  Bac. 
Abr.  Pleas,  E.  2. 

{p)  Ante,  422. 

(7)  2  Saund.  209.  e.  Gilb.  C.  P. 
187.  Bac.  Abr.  tit.  Abatement,  A. 
lit.  Pleas,  &c.  2.  Gilb.  CI  P.  187.— 
Bac.  Abr.  Abatement,  A.  8  T.  R 
0.51. 

()•)  Ante,  41.3.     2  Saund.  209.  c. 

(•s)  See  the  forms,  Rast.  Ent.  101. 
419.  Heme,  351.  1  Wils.  19.3.  and 
ante,  430.  Bat  see  the  precedent. 
ST  n.  031. 


I 


43:;2  OF  PLEAS  TO  THE  JURISDTCTIOX. 

/.  Of  films  la  may  be  administered,  for  if  there  be  no  other  mode  of  trial,' 

jurisdiction.  ,,      •         ,  .       '  •      •    i-     •       /  ^. 

&C.  that  alone  would  give  the  superior  courts  jurisdiction. (^) 

In  transitory  actions  it  must  be  averred  in  the  plea  either  that 
the  defendant  dwells  in  the  county  palatine,  or  that  he  has  suffi- 
cient goods  and  chattels  there  by  which  he  may  be  attached, 

*  433         *otherwise  the  plea  cannot  be  allowed,  lest  a  failure  of  justice 

should  ensue.(«)     But  in^a  plea  to  the  jurisdiction  of  an  infe- 
rior court,  it  is  sufficient  to  allege  that  the  cause  of  action  ac- 
crued out  of  its  jurisdiction,  without  shewing  the  jurisdiction 
to  which  the  plaintiff  should  have  resorted. (v)     These  pleas 
should  conclude  with  a  prayer,   "  si  curia  cognoscere  velii"''jQr 
"  resfio?idere  non  debet  "  and  not  "  quod  billa  -vel  breve  cd'Sse- 
"  tur  ;'\iv)  the  forftier  is  the  most  usual  conclusion  when  the 
subject  matter  of  the  plea  relates  to  the  cause  of  action,  and-^|B 
the  res/iondere  non  debet  seems  proper  where  the  objection  tf>   "v 
the  jurisdiction  is  a  personal  privilege  .(jt)     If  the  plea  were  t( 
conclude  in  bar  to  the  action,  the  jurisdiction  would  thereby  in 
general  be  admitted. (?/) 

In  support  of  a  plea  to  the  jurisdiction  there  must  in  gene-  m 
ral  be  an  affidavit  of  the  truth  of  its  contents.(2)  And  where 
ancient  demesne  is  pleaded,  the  affidavit  must  state  that  the 
lands  are  holden  of  a  manor  which  is  ancient  demesne,  that 
there  is  a  court  of  ancient  demesne  regularly  holden,  and  that 
the  lessor  of  the  plaintiff  has  a  freehold  interest.(a) 

To  the  plea  of  ancient  demesne  the  plaintiff  may  reply  that  the 

*  A^  A,         \^^A  is  pleadable  at  common  *law,  and  traverse  that  the  manor       n 

is  ancient  demesne,  or  he  may  reply  without  a  traverse. ^6)  The 
replication  to  pleas  to  the  jurisdiction  in  general,  commences 
with  a  statement  that  the  writ  ought  not  to  be  quashed,  or  that 
the  court  ought  not  to  be  ousted  of  their  jurisdiction,  because, 


(0  6  East,  598.   fiOO.     Cowp.   172.  101.419.    Heme,  351.     1  Wils.  lO.S. 

Cartli.  C-'55.     3  Leon.  148.      4.  T.  R.  Lutw.   45.   639.     5J  Rich.   C.    P.   lf> 

.')0.}.     4  Inst    213.     Bac.  Abr.  Abate-  Lil.  Ent.  9. 

mcnt,  A.  tit.  Courts,  D.  3.  (.r)  Id.  ibid. 

(;/)   Curtli.    355.     See    the  prece-  (j-)  Vin.  Abr.  Coiu-ts,  .Turisuictint:. 

dents,  ante,  430.  N.  a. 

(r)  G  East,  600,   601.   and   see   the  (r)  4  Ann.  c.  16.  s.  11.     Bac.  Abr 

precedents,  I  AVentw.  51.  60,  61.  78.  Courts,  D.  4.     Post. 

(w)  Rac.  Abr.  Pleas,  E.  ±     Latcli.  («)  2  Burr.  104G. 

178.     5  Mod.  14G.  Bro.  Juiisdiction,  (i)  Com.  Dig.  Abuteraent,  D.  1  • 
•Vl.   17-      -  Saund.  209.     Kast.  Ent. 


OF   PLEAS  IN  ABATEMENT.  434 

&c.(c)  and  concludes  to  the  country,  if  the  replication  merely  /.  Of  pleas  .♦» 
deny  the  subject  matter  of  the  plca.(rf)  Where  the  plaintiff  i"™'^'c/'«"- 
demurs  to  the  plea,  he  states  that  he  is  not  bound  to  answer  the 
plea,  and  that  the  same  is  not  sufficient  to  prevent  the  court 
from  having  conusance  of  the  action  ;(f)  the  language  of  the 
joinder  in  demurrer  corresponds  with  that  of  the  demurrer.(y") 
The  judgment  in  these  cases  is,  that  the  writ  shall  abate,  or 
resjioudmt  ouster. {g) 


II.    OF  PLEAS   Ijy  ABATEMEJVT. 

Whenever  the  subject  matter  of  the  plea  or  defence  is  that  II-  Ofpiemiu 

ubutement. 
the  plamtiff  cannot  maintain  any  action  at  amy  time,  m  respect 

of  the  supposed  cause  of  action,  it  may,  and  usually  should,  be 
pleaded  in  dar  ;  but  matter  which  merely  defeats  the  present 
proceeding,  and  dees  not  shev/  that  the  plaintiff  is  for  ever  con- 
cluded should  in  general  be  pleaded  in  abatement. {a)  There  are, 
however,  some  matters  which  may  be  pleaded  in  abatement  or 
;)ar ;  as  in  replevin  for  goods,  the  defendant  may  plead  ^'proper-  •*   435 

ty  in  himself  or  in  a  stranger,  either  in  abatement  or  in  bar.(d) 
So  outlawry  for  felony,  alien  enemy,  and  attainder,  where  the 
cause  of  action  is  thereby  forfeited,  may  be  pleaded  in  abate- 
ment or  in  bar  ;(c)  and  when  the  defendant  has  omitted  to 
plead  in  abatement  in  due  time,  he  must  then  plead  in  bar  ;(c/) 
but  where  the  plaintiff's  disability  merely  suspends  the  right  of 
action,  and  does  not  destroy  it,  it  can  only  be  pleaded  in  abate- 
ment, and  the  plea  should  conclude  si  resfionderi  debeat  (jiions- 
(jue,  Sec.  and  when  the  disability  is  removed  the  suit  will  pro- 


(c)  Tliomp.  Ent.  2.      Rast.   Ent.  (a)  4  T.  R.  22".    Bae.  Abr.  Abatc- 

101.     Clift.  Ent.  17.  ment,  N.    Com.  Dig.  Abatement,  B. 

((/)  Id.  ibid.  (/*)1  Salk.  5.  Post,  vol.  2.  510.  ii.  (  /'). 

(e)  Rast.  Ent  419.     1  Wils.  194.  (c)       Bac.     Abr.     Abatement,    N. 

(/)  Id.  ibid.  Com.  Dig.  Abatement,  K.     Co.   Lit. 

(^■)  Viu.  Abr.   Court  Jurisdiction,  128.  b.  129.  b.    Ld.  Raym.  1249.  Bn' 

N".  a.   Com.  Dig.  Abatement,  I.  14.  V.  >!  252.     Gilb.  C.  P.  200. 

{(l)  Bac.  Abr.  Pleas,  C.  3. 


435  01'   PLEAS   IN  ABATEMENT. 

//.    Of  picas  ceed/e)    Pleas  in  abatement  we  have  already  seen  are  divided 
««  abaieimnt.   .  .  - 

into  those  relatinc: 


\st.   To  the  clisabilitij  of  the  person. 
Int.    Of  the  fUaintiff  ; 
2dly.  Of  the  defendant, 

2dly.   To  the  count  or  dec/aratio?i. 

^dlij.    To  the  writ. 

1st.      To  the  form  of  the  nvrit . 

Int.     jMatter  ajijiareiit  un  ihc  face  of  it. 
2dlij.  Matter  dehors. 
2dly.     To  the  action  of  i/ic  nvrit. 


1.  lUlatingto       Pleas  to  the  disability  of  the  /dainti^  shewing  that  he  is  inca 
pable  of  commencing  or  continuing  his   suit,  either  deny  his 
existence,  as  that  he  or  one  of  several  plaintiffs  at  the  time  of 

*  436  the  commencement  of  the  suit  was  afctitious  person, (y)  *or 
dead  ;(ff)  and  where  a  sole  plaintiff  dies  pending  the  suit,  such 
death  may  be  pleaded  in  abatement  ;(A)  but  in  the  case  of  se- 
veral plaintiffs  or  defendants,  the  death  of  one  does  not  abate 
the  suit,  if  the  cause  of  aclion  survive,  for  or  against  the  sur- 
vivors :(/)  so  the  defendant  may  plead  in  abatement,  that  the 
plaintiff  is  an  alien  enemy,(y)  attainted  of  treason  or  felony,(/t) 
outlawed  upon  mesne  or  final  process, (/)  under  a  premunirej(m) 


(e)  Lrl.  Raym.  105G.  12  Mod.  400.  Bac.  Abr.  Abatement,  B.  3.     1  Doct, 

4  East,  504.  Plac.  8.     See  the  forms,  3  Inst.  CI.  IG- 

(/)  Com.  Dig.  Abatement,  E.  10.  2  Stra.  1081.     2  Raym.  1243.     Lutw- 

Eac.   Abr.   Abatement,   F.     1   Wils.  34.     1  Wentw.  Inde.x,  8.     Gilb.  C.  P. 

302.     Gilb.  C.  P.  248.     See  the  prece-  295.    See  the  precedents  in  h?cv,\)0&i- 

dents,  Ast.  Eut.    10.        3    Inst.     CI.  vol.  2.  425,  426. 

St).     1  Wentw.  50.  and  Index,  11.  {k)  Carth.  137,  138.     Com.  Dig. 

(^•)  Ast.  Ent.  8.    3  Inst.  CI.  75.  kc.  Abatement,  E.  3.     See  the   form,  1. 

1  Wentw.  Ind.  11.     Bac.  Abr.  Abate-  Wentw.  7. 

ment,  L.     Com.  Dig.  Abatement,  E.  (0  Gilb.  C.  P.    106,   197.      C.  D. 

17.  Abatement,  E.  2.    Bac.   Abr.  Abate. 

(/()  Bac.  Abr.  Abatement,  F.  Cora,  ment,  B.  1.       See  the  form,  Lutw.  6. 

Dig.  Abatement,  H.  32,  33.  1529.    3  Inst.  CI.  23.    1   Wentw.  .Ind. 

(j)  Id.  ibid.  8  &  9  W.  III.   c.    11.  s.  7.     1  East,  634. 
7.    2Saund.  72.  i.     Bac.  Abr.  Abate-  (?n)  Co.  Lit.  129.  b.    C.  D.  Abate- 
ment, F.  ment,  E.  6. 

(.)')  Com.  Dig.  Abatement,  E.    4. 


i 


OF  PLEAS  IN  ABATEMENT.  435 

er  excoi"nmunicated,(n)  or  that  the  plaintiff  (unless  he  sue  \vith  /  Kehuivg  to 

others  as   executor)    is  an  infant  and  has  declared  hy   attor-     "/"^' '•''"• 

ney  ;(o)  and  this  is  the  proper  mode  of  taking  advantage  of  the 

objection  in  the  case  of  plaintiffs  ;(/?)  but  bankruptcy  of  the 

plaintiff  pending    the  suit  does  not  abate  it.('/)     When  d.feme 

covert  has  no  interest   whatever  in   the   subject  matter  of  the 

action,  consequently  ought  not  to  be  made  a  party,  and  she  sues 

with  or  v/ithout  her  husband,   the   *plaintiff  will   be  nonsuited         ^   437 

on  the   general  issue  ;(r)  but  where  the  feme  was  interested 

before   or    during   her   coverture  in  the  subject  matter  of  the 

action,  and  might  join  with   the   husband  but  sues  alone,  her 

coverture    can   only   be   pleaded  in  abatement,  and  cannot  be 

given  in  evidence  under  the  general  issue,  or  pleaded  in  bar  ; 

at  least  this  rule  obtains  in  actions  for  torts  :(«)  and  if  the  plaintiff 

take  husband  after  suing  out  the  writ  and  before  the  declaration, 

the  defendant  cannot  give  the  coverture  in  evidence  under  the 

general  issue,  but  must   plead  it  in  abatement,(^)  as  matter 

arising  before  plea  or  pending  the  suit,  or  puis    darrein  ccn*- 

tv, nance  if  after  issue  joined. (Ty) 

Pleas  in  abatement  to  the  person  of  the  defendant  are  cover* 
ture,  and  infancy  when  the  parol  shall  demur.  Coverture  at 
the  time  when  the  supposed  contract  was  entered  into  may  be 
pleaded  in  bar  or  given  in  evidence  under  the  general  issue 
non-assumpsit  or  non  est  faclum,{n^  but  where  the  objectina 
does  not  go  to  the  liability  of  the  feme,  but  is  merely  that  the 
husband  ought  to  have  been  sued  jointly  with  her,  as  where 
since  entering  into  the  contract  oi'  committing  the  toj't  she  has 
married,  she  must  when  sued  alone,  plead  her  coverture  in 


(«)  Lutw.  1".    Sinst.  Cl.  18.     Cro.  Salk.  114.     I  H.   EI.   lOS.     Cro.  Jac. 

lac.  8-2.    Hac.  Abr.  .Vbalement,  R.  ■2.  644.     2  Bl.  Rep.  I'-ViG. 

1  Wcntw.  Index.     Gilb.  C.  P.  202.  (.v)    3  T.    R.   C31.      G  T.   R.    265. 
(o)  I5r.  R.  475.  4CC.    3  Inst.  Cl.  19.  Com.    Dig-.  Abatement,  E.   6.  IL  42. 

55.    Clift,    11.     1    Mod.   Ent.   2'J.     1  1  Leon.    IG9.     St-c    the    form,    post, 

Wentw.  58.     Inde.x,  10.  see  the  form,  vol.  2.  414.     1  Wentw.  4".  and  Indtx, 

2  Sam;;!.  209.  a.  9. 

(/>)  2  Saund.  212.  a.  n.  5.  (/)  fi  T.  R.  265. 

(7)  2  Wiis.  37\.     1   T.  R.   463.    3         (v)  4  East,  502. 
T.  R.  43-  l?i)  12   Mod.    101.      8T.  R.   5l5 

(/•)    Ante,    22.     4T,  R.    361.       1  See  tlie  precedents  ia  bar,  post,  voi 

2.  425. 

Vol.  I.  r  40  1 


438*  OF  PLEAS  IN  ABATEMENT. 

1  liehitin^to  iibixtetuciit,  iiutl  aver  that  her  husband  is  living;  -.{w)  and  if  *the 
the  peisou.  dcrciulant  marry  after  the  commencement  of  the  suit,  such 
coverture  cannot  be  pleaded  even  in  abatement. (^)  Infuncxj 
may  be  pleaded  in  abatement  in  an  action  upon  a  specialty, 
when  the  defendant  is  sued  as  heir  on  the  obligation  of  his 
ancestor,  in  which  case  the  parol  shall  demur,  or  proceedings 
be  stayed  till  he  comes  of  age  ;(;/)  and  this  privilege  does  not 
extend  to  an  infant  devisee. (r)  To  the  plea  of  coverture  the 
plaintiff  cannot  reply  tliat  the  defendant  lives  apart  from  her 
husband,  and  has  a  separate  maintenance  secured  to  her  by 
deed  ;  for  whilst  the  relation  of  marriage  subsists,  and  she 
and  her  husband  are  living  in  this  kingdom,  she  cannot  be 
sued  alune  ;(«)  but  where  the  husband  is  civiliter  mortuus,  or 
has  been  transported,  or  is  an  alien  residing  abroad,  the  facts 
may  be  replied. (6) 
JT.  Jieh'Ainc^  Pleas  in  abatement  to  the  count  could  only  be  pleaded  in  ac- 
^^?/ie  count,  jj^j^g  j^y.  Qj-ig-jnal  writ.  The  first  act  of  the  parties  after  ap- 
pearance and  admission  of  the  jurisdiction  of  the  court  over 
the  subject  matter  of  the  cause,  and  of  the  ability  of  the  plain- 
tiff to  sue,  and  the  defendant  to  be  sued,  is  the  declaration  or 
count,  after  which  formerly  the  defendant  might  demand  oijer 
of  the  writ,  and  then  the  same  being  set  forth  on  the  roll,  if 
there  w  ere  any  vavii.nce  between  the  count  and  the  writ,  or  be- 
tween the  writ  and  a  record,  specialty.  Sic.  mentioned  in  the 
count,  the  defendant  miL^ht  plead  such  variance  in  abatement 
■^  A'lQ  '^''  demur,  move  in  arrest  *of  judgment  or  sustain  error. (c) 
But  as  a  variance  between  the  writ  and  count  could  in  no  case 
be  pleaded  without  craving  oyer  of  the  writ,((i)  and  the  defend- 
ant cannot  now  have  such  oyer,  such  variance  or  defect  is  no 


(tf)   .3  T.  R.  627.  Rac.  Abr.  Abate-  4S.5.     4T.  R.  77.     See  the  form,  post, 

meiit,  G.      C.   D.  Abatement,  F.  2.  vol.  2.  472.    Rast.  360.  362.  379.    Bro. 

Ciiilh.  124.     Cro.  Eliz.  .554.     See  die  Red.  )9.i.      4  East,  485.     Lil.  Eat.  3, 

form,  post,    vol.  2.  415.       3  Inst.  CI.  (r)  4  East,  485. 

71.     1  Werit«-.  Imlex,   1.3.    The  form  («)  S  Term  Rep.  545. 

in  I  Lutw.  23.  is  burl,  see   post,  vol.  {!>)  Selwyn's  N.  P.  236  to  241, 

'-^•415.  (t)   2  Wiis.  .394.    Com.  Dig.  Abate- 

{x)  Eac.   Abr.    Abatement,  G.     2  ment,  G.  8.     3  Inst.  CI.  62.    Reg.  PI- 

Stra.    8!  4.    et   rvVfe  Loft.   27.     2  Ld.  277,278.       ,*, 

.U.iym.  15-25.  (,/)  2  Wils"!  394,  305. 

iy)  Com.  Dig.  tit.  Infant,  D.  4  East, 


OF  PLEAS  IN  ABATEMENT.  439 

longer  pleadable  in   abatement,  and  if  it  be,  the  plaintiff  may  n.    ^eUuing 
siu,n  judgment  or  move  the  court  to  set  it  aside,(e)  nor  will  the  %  '^'^  comu, 
court    set    aside    the   proceeding    in    respect    of    the     vari- 
ance.(/) 

Pleas  in  abatanetit  to  the  writ  or  bill  are  so  termed  rather  HI.  Jiehuing 
from  their  effect  than  from  their  being  strictly  such  pleas,  for  '°  ''"^  """'"• 
as  oyer  of  the  writ  can  no  longer  be  craved,  no  objection  can 
be  taken  to  matter  which  is  merely  contained  in  the  ivrit  ;(ff) 
but  if  the  mistake  in  the  writ  be  carried  also  into  the  declara- 
tion, or  rather  if  the  declaration  which  is  presumed  to  corres- 
pond with  the  writ  or  bill  be  incorrect  in  respect  of  some  ex- 
trinsic matter,  it  is  then  open  to  the  defendant  to  plead  in 
abatement  to  the  writ  or  bill,(/!)  and  there  is  no  plea  to  the 
declaration  alone  but  in  bar.(f)  Pleas  in  abatement  of  the  writ 
or  bill  are  to  the  for?n  or  to  the  action  thereof  :(7')  Those  of 
the  firsl  description  were  formerly  either  matter  apparent  on 
the  fare  of  the  writ  or  bill,(A-)  or  matter  dehors.{l)  Formerly 
a  defect  in  the- form  of  the  writ  apparent  on  the  face  of  it,  as 
repugnancy,  variance  from  the  record,  specialty,  &c.  want  of 
sufHcient  *time,  between  the  teste  and  return,(X)  or  in  actions  ^   440 

by  original,  the  omission  or  mistake  in  the  wiit  of  the  defend- 
ant's addition, (/)  either  of  estate,  degree,  mystery,  or  place  of 
abode,(/H)  were  pleadable  in  abatement ;  but  as  oyer  of  the 
writ  can  no  longer  be  had,  an  omission  of  the  defendant's  ad- 
dition, which  is  not  necessary  to  be  stated  in  a  declaration.^  can 
in  no  case  be  pleaded  in  abatement ;  and  if  it  be,  the  plaintiff 
may  sign  judgment,  or  apply  to  the  court  to  set  the  plea 
aside. v,n) 


(f )  1  R.  &  P.  646,  647.      3  B.  k  P.         (Jc)  Com.  Dig.  Abatement,  H.  1. 
31'5.     7  East,  583.  (/)  Com.  Dig.  AljHlonient,  H.  17. 

(/)    '2  \\  iis.   3<i3.        3  East,    167.         {k)   1  Liitw.  '25.     3  lust.  CI.  49.  54. 

Ante,  249.  66.  ^c 

(^)  3  H.  k  P.  399.     1  B.i*  P.  645.         (/)  1  Hen.  V.  C.  5.     3  lust.  CI.  92. 

647,  648.  Lil.    Ent.    5.     2  I{ich.  C.  P.  5.    8.     1 

(/()    lli.  kP.  648.      10  Mod.  210,  Stra.  556.     Ld.  llayra.  1541.      2  Inst. 

211.  668. 

(0  10  Mod.  210.      2  Saiind.  209.  d.         (/n)  3  B.  &  P.  395. 

(./)    Com.    Dig.   Atetement,  H.  1.         («)  1  Saund.  318.  n.  3.      3  B.  &  P. 

17.  395.     7  East,  3S3. 


440  OF  PLEAS  IN  ABATEMENT. 

///.  lielaiins       Pleas  in  abatement  to  the  form  of  tl>e  writ  are  therefore 

to  the  ivrlt.  .      .      ,       „  .     .  i        •  i- 

now  principally  tor  matter  de/!ors,{Q)  existing-  at  the  time  ot 
suing  out  the  writ  or  arising  afterwards,(/0  such  as  misnomer 
of  the  pidintiff  or  defendant  in  christian  or  surname.  It  wat 
once  doubted  if  a  mistake  of  the  filaintiff's  christian  or  sur- 
name were  not  ground  of  nonsuit,  but  it  is  now  settled  that 
the  mistake  must  be  pleaded  in  abatement  even  in  the  case  of 
a  corporation, (y)  and  this  objection  cannot  be  pleaded  unless 
the  misnomer  also  appear  in  the  declaration, (r)  for  the  plaintiff 
may  declare  in  his  right  name  though  the  name  be  mistaken 
in  the  process.  Misnomer  of  the  d<fcndayit  must  also  be 
^   441  pleaded  in  abatement  ;(.0  and  if  the  *christian    names    be  re- 

versed in  order,  as  1-iichard  John,  instead  of  John  Richard,  that 
may  be  pleaded, (/)  and  a  person  sued  as  an  attorney  may  plead 
that  he  is  not  an  attorney. (t)  But  nusnomer  of  another  defend- 
ant cannot  be  pleaded  by  his  companion  ^(u)  and  if  the  declara- 
tion be  against  the  defendant  in  his  right  name,  though  variant 
from  thai  in  the  writ,  he  cannot  plead  in  abatement. (7i>)  The 
consequences  of  a  misnomer  of  the  defendant  have  already  been 
stated  •,{x)  in  addition  to  which  it  may  be  collected  that  the 
proper  course  for  the  defendant  to  pursue  in  order  to  take  ad- 
vantage of  a  misnomer  in  the  process,  is  to  move  before  ap- 
pearance to  set  aside  the  mesne  process  for  irregularity. (?/) 

Other  pleas  to  xXxeform  of  the  ivrit  are,  that  the  plaintiffs  or 
defendants  suing  or  being  sued  as  husband  and  wile  are  not 
married, (r)  or  that  one  of  the  plaintiffs  or  defendants  was  ficti- 


i 


(o)  Cora.   Dig.  Abatement,  H.   17.  4lS.     LuUv.  10.    Lil.  Ent.  6.     2  llicli. 

&c.     Gi!b.  C.  P.  51.  Prac  4. 

(/))  Com.  Dig.  Abatement,  II.  17.  {t)  5  T,  R.  l'J5. 

3-2.  {v)  1  Wentw.  6.  Prac.  Jleg.  8. 

((?)  1  B.   &    P.  40.     3  Anstr.    935.  {n)  Lutw.  S6. 

Cora.  Dig.  Abatement,  E.  18,  19,  20,  {w)  1  B.  k  P.  645.      3   East,    107. 

21.     3  Yin.  312.      Bac.    Abr.  Abate-  Ante,  250. 

ment,   D.     See  the  precedents,  post,  (,/-) 'ri(li.rs  Prac.  3d  edit.  582.  n.  i, 

vol.  2.  418.     Lil.  Ent.  4.     I  East,  542.  k  4th  ei'.it.  573.  n.  k. 

(r)   1  B.  &  P.  645.  (  v)  1  B.  k  P.  647.  Sed  411.  3  East, 

(«)     Bac.    Abr.     Abatement,    9. —  167. 

Misnomer,    F.      Com.    Dig.    Abate-  (r)  Com.  Dig.  Abatement,  E.  6.    S 

ment,  F.  17,  IS.  and  2  Bl.  Hep.   120.  Inst.  CI.  69.     1  Wculw.  Imiex,  12. 
See  the  forms,  post,  vol.  2.  4l6,  417, 


OF   PLEAS  IN  ABATEMENT. 


441 


tious  or  dead  at  the  time  of  the  issuing  the  \vrit,(a)  or  any  other  J^^ 
plea  for  want  of  proper  parties,(6)  as  that  there  are  other  joint 
contractors,  Scc.(c)  other  executors, (c/)  or  administrators, (t)  or 
other  persons,(/)  *not  joined,  who  ought  to  be  made  parties 
to  the  suit.  The  plea  in  abatement  of  non-joinder  must  aver 
that  the  parly  omitted  is  still  living.(^'-)  We  have  already  seen, 
when  considering  the  parlies  to  the  action,  that  in  actions  on 
contracts  the  non-joinder  of  a  party  who  ought  to  be  made  co- 
pluhitiff,  will  in  general  be  the  groundof  nonsuit,  and  need  not, 
though  it  may  be,  pleaded  in  abatement  •,{h)  but  that  in  the  case 
of  executors  or  assignees  of  a  bankrupt  and  others  suing  jure 
rcfiresi'7irationis,  the  omission  can  only  be  pleaded  in  abate- 
ment,(0  and  that  the  non-joinder  of  a  person  who  ought  to  be 
made  a  co-plaintiff  in  an  action  hi  form  ex  delicto,  us  case,  tro- 
ver, trespass,  Ecc.  can  only  be  pleaded  in  abatement  ;(y)  and 
that  with  regard  to  defendants,  tlie  omission  of  a  joint  con- 
tractor must  be  pleaded  in  abatement. (A:)  and  that  in  actions  for 
torts,  no  advantage  can  in  general  be  taken  of  the  non-joinder 
of  a  defendant. (/) 

Pleas  in  abatement  to  the  actio7i  of  the  writ,  are  that  the  ac- 
tion is  misconceived,  as  it  is  in  case  when  it  ought  to  have 
been  in  trespass. (w)  or  that  it  was  prematurely  brought :(«) 
but  as  these  matters  are  the  ground  of  demurrer  or  nonsuit,  it 
is  now  very  unusual  to  plead  them  in  abatement  -jio)  and  in  the 
King's  Bench  by  bill  the  writ  may  be  issued  before  the  cause  of 
action  accrued.*./?)     It  may  also  be  pleaded  that  there  *is  ano- 


Relutint 
e  -writ. 


*  442 


*  443 


(h)  1  Doct.  Plac.  12.  Bac.  Abr. 
Abatement,  L. 

(6)  Ante,  c.  I.  Parties  to  the  ac- 
tion, per  toiiiin. 

(c)  iSee  the  preccdtiUs,  post,  vol.  2. 
415,  416. 

(«/■)  Com.  Dig.  Abatement,  E.  8.  F. 
4.  fecc.  3  Inst.  CI.  51.  Uast.  325.  a.  1 
Wcntw.  9.     Reg.  140. 

(e)  3  Inst.  CI.  53.     Rast.  324. 

(/)  3  Inst  CI.  53.  119.  1  Lutw. 
69ti.  I  East,  634.  1  Weiitw.  10,  11. 
Index,  12. 

(^')  I  Sann(1.291.  a.  n.  2. 

(A)  Ante,  7. 


2  Saund.   291.  g. 


(0  Ante,  7.  13. 
3  B.  k  P.  405. 

(  ;■)  Ante,  53. 

(A)  Ante,  29. 

(/)  Ante,  75,  76.  3  East,  C2.  Sed 
vid.  2  New  Rep.  305. 

(?«)  3  Inst.  CI.  120.  he.  Com.  Dig- 
Abatement,  G.  5. 

(«)  Com.  Dig.  Abatement,  G.  C. 
tit.  Action,  E.  Lutw.  8.  13.  3  Inst. 
CI.  56.  Fortes.  334.  Cliit.  Ent.  10. 
18,  19.     Sed   qu.     Ld.  Raym.  1249. 

(o)  See  tbe  instances  of  misjoinder, 
2  Saund.  210.  a. 

(/»)  4  East,  75.    Ante. 


443  OF  PLEAS   IN  ABATEMENT. 

///  Jielatin^  ther  action  depending  for  the  same  cause/  7)  in  the  same  or  in 

to  the  -wni.  .  ' 

any  otliei'  superior  court  at    Westminnter^  but  the   pendency  of 

another  suil  in   the  sherift''s  or  other  inferior  court,  it  is  said, 

cannot  be  pleaded. (r)     In   general  the   pendency  of  a  fornier 

action  musi  be  pleaded  in  abatement,  but  in   a  penal   action  at 

the  suit  of  a  common  informer,  the  priority  of  a  pending  suit 

for  the  same  penalty  in  the  name  of  a  third  person,  may  be 

pleaded  in  bar,  because  the  party  who  first  sued  is  entitled  to  the 

penally  (6')     In  tlie  latter  ca^e  the  plea,  when  the  two  suits  were 

commenced  in  tlie  s.ime  term,  should  shew  the  precise  day  or 

time  when  the  prior  suit  was  commenced. (r)      ihe  plaintiff 

cannot,  alter  a  plea  in  abatement  of  the  pendency  of  a  prior  suit, 

avoid  the  efiect  of  the  plea  by  discontinuing  the  first  action 

•which  was  pending  at  the  time  of  tlie  plea.(70 

Qfialities  and  It  '^'^il'  "ow  be  proper  to  consider  the  effect,  c/ualities,  and 
Jbrm.  form  of  these  dilatory  pleas.       A   writ  is   divisible,  and  may  be 

abated  in  part  and  remain  good  as  to  the  residue  ;  and  the  de- 
fendant may  plead  in  abatement  to  part,  and  demur  or  plead  in 
bar  to  the  residue  of  the  writ  or  declaration  ;  the  settled  rule 
being,  that  il  tiie  plaintiff  in  his  action  brought  either  upon  a 
general  writ,  such  as  debt,  detinue,  account,  or  the  like,  or  on 
a  certain  and  particular  one,  as  asfimn/isit^  trespass,  case,  8cc. 

*  444  *demunds  two  or  more  things,  and  it  appears  from  his  own 
shewing  that  he  cannot  have  an  action  or  better  writ  tor  one 
of  them,  the  writ  shall  not  abate  in  the  whole,  but  stand  for  so 
much  as  is  good,  but  if  ii  appear  upon  his  own  shewing,  that 
he  has  a  cause  of  action  for  all  the  things  demanded,  but  the 
■writ  is  not  proper  for  one  of  them,  and  that  he  might  have 
another  in  anotlier  form  tor  that,  then  the  whole  writ  shall 
abate. (m)  Formerly  it  was  the  practice  to  plead  in  abatement, 
when  upon  the   face  of  the   plainlift  's  declaration  it  appeared 


(5)  Com.  Dig.  Abatement,   II.  •iA.  (.s)  S.iyer's  Rep.  s.  216.  k  post,  vol. 

Bac.   Abr.  Abatement,  M.      See  the  2.  490.  492. 

precedent,  pott,  vn!.  2.  418.  {t)  3  Burr.  1423.    I  Bl.   Rep.    437. 

(?•)  5  Co.  62.      2Wil.s.    87.     PMtzg.  2Lev.  l4l.     2  Stra.  1169. 

313.  Buc.  Abr.  Abatement,  M.  Com.  (r)  1  Salk.  S29.    2  Ld.  Raym.  1014. 

Dig.  Abatement,  H.  24.  2  Ld.  Raym.  Doct.  Plac.  11. 

1102.     Sed  qiuere,  it"  it  were  alitged,  (?<)   11   Co.  45.   b.    1   Saund.  285. 

that  tbc  inferior  coui-t  had  jarisdic-  Rep.  temp.  Hardw.  273.     2  B.   k  P. 

tlon,  Fitz^.  314.  420.  but  see  2  Spund.  210.  in    notes- 

aud.  210.  d.  and  1  Saund.  285.  n.  7- 


OF   PLEAS   IN  ABATEMENT.  444 

that  a  part  of  the  plaintiff's  cause  of  action  was  not  well  founded,   Q'^^'i^^  c"*^ 

.        .    furiii. 
but  now  it  is  most  usual  to  demur  to  the  whole  declaration  if 

there  be  a  misjoinder,  or  if  there  be  no  misjoinder,  then  only 
to  the  defective  part.(w)  Where  the  matter  goes  only  to  de- 
feat a  part  of  the  plaintiff 's  cause  of  action,  the  plea  in  abate- 
ment should  be  confined  to  that  part,  and  if  tlic  defendant  were 
to  plead  to  the  whole,  his  plea  would'be  defective  ;(:t)  but  if  a 
plea  in  abatement  contain  matter  which  goes  only  in  part  abate- 
ment of  the  writ,  and  conclude  with  a  prayer  that  the  whole 
writ  may  be  abated,  the  court  may  abate  so  much  of  the 
writ  as  the  matter  pleaded  applies  to,  if  there  be  a  plea  to  the 
other  parts  of  the  declaration. (y) 

As  these  pleas  delay  the  trial  of  the  merits  of  the  action, 
the  greatest  accuracy  and  precision  are  required  in  framing 
them  ;(z)    they  should  be   *certain   to  every    intent,    and   be  *   445 

pleaded  without  any  repugnancy,(2)  and  must  in  general  give 
the  plaintiff  a  better  writ  or  bill,  and  therefore  a  plea  of  misno- 
mer in  the  christian  name  must  state  what  is  the  defendant's 
surname. («)  This  is  the  true  criterion  to  distinguish  a  plea  in 
abatement  from  a  plea  in  bar;(^)  and  where  the  subject  mat- 
ter of  the  plea  tends  to  shew  that  the  plaintiff  cannot  maintain 
M7iy  action  it  should  be  pleaded  in  bar  and  not  in  abatement  ;(c) 
therefore  where  the  action  is  by  an  administrator,  stating  a 
grant  of  administration  from  a  bishop  of  a  peculiar  diocese,  a 
plea  of  bona  notabilia  should  be  in  bar  and  not  in  abatement, 
because  it  shews  that  the  plaintiff  has  no  right  to  sue  at  all  in 
the  character  of  administrator.(f/)  Great  accuracy  is  also  ne- 
cessary in  the  form  of  the  plea  as  to  the  commencement  and 
conclusion,  which  it  is  said  make  the  piea,(rO  and  a  plea  which 


(w)  See  the  cases,  2  Saund.  210.  in  (6)   Browiil.  139.     1  Sauiul.  274.  n. 

BOles.  4.  2S4.  n.  4.     2   B.   &  P.    Xli.     4  T. 

(x)  5  T.  R.  557.  R.    227.      6   East,   60U.      Com.    Dig. 

iy)  2  B.  &  P.  420.  2  Saund.  210.  d.  Abatement,  I.  1,  2. 

(s)  3  T.  R.  180.    Wiilos,  42.     2  Bl.  (c)  4  T.  K.  227. 

Rei'.   1096.     2  Saund.   209.    b.   n.    1.  (J)  1  Saund.  274.  n.  3. 

Com.  Dig.  Abatement,  I.  H.  (f)  Latch.  178.  2  Saund.  209.  c.  d. 

(z)  Co.  Lit.  30.3.     Cio.  Jac.  82.     9  2  Ld.  Raym.  1019.     But  sec  the    ea- 

Lev,  67.     3  T.  11.  186.     Willes,  42.  tries  referred  t»  in  3  T.  I'l.  18«. 

(a)  8  T.   R.  515,  516.    Bac    Abr. 
Misaaucr,  F. 


445  OF  PLEAS   IN  ABATEMENT. 

qnalities  and  concluded  with  prayintr  iude;ment  « if"  (instead  of  '« of,")  the 

form.  .     .    ,         .  - 

plaintift''s  bill  was  held  bad  on  demurrer,  though  the  words 
"  and  that  the  same  may  be  quashed"  were  also  added. (/") 

The  general  rule  which  prevails  in  pleading  is,  that  a  mere 
prayer  of  judgment,  without  pointing  out  the  appropriate  judg- 
ment, is  sutTicicnt,  because  the  facts  being  shewn,  the  court  are 
4<4o  bound  to  pronounce  *the  proper  judgment ;( 5")  and  upon  that 
principle  it  has  been  held,  that  if  a  plea  which  contains  matter 
in  bar  of  an  action  conclude  in  abatement,  it  is  a  plea  in  bar 
notwithstanding  the  conclusion  and  final  judgment  shall  be 
given  upon  it,  for  if  the  plaintiff  have  no  cause  of  action  he  can 
have  no  writ.(//)  But  the  anxiety  of  the  courts  to  discourage 
dilatory  pleas  has  induced  them  to  depart  from  this  rule  in  re- 
gard to  the  ciicct  of  the  beginning  or  conclusion  of  such  pleas  ; 
and  if  a  plea  w^hich  contains  matter  only  in  abatement  conclude 
in  bar  and  is  found  against  the  defendant  it  is  a  plea  in  bar,  and 
final  judgment  may  be  given,  because  by  praying  judgment  if 
the  plaintiff  shall  maintain  his  action^  the  defendant  admits  the 
writ  to  be  good.(z)  So  a  plea  which  begins  in  bar^  though 
it  contains  matter  in  abatement  and  concludes  in  abatement,  is  a 
plea  in  bar  and  final  judgment  may  be  given. (7)  It  is  not  ne- 
cessary in  a  plea  in  abatement  to  state  any  venue  for  the  facts 
therein  averred,  because  they  shall  be  tried  where  the  action 
is  laid  ;CA)  and  if  it  be  pleaded  that  another  person  who  ought  to 
have  been  suedv.ith  the  defendant  is  alive,  to  wit,  in  Spain^  it  is 
mere  surplusage,  and  will  be  considered  as  pleaded  without  any 
veniic.^l)  Z)7v////f77£/ in  a  plea  of  tins  description  is  as  objection- 
*  447  ''^^<^  '^^  '"  ^  P^^'^  ^'^  ^^"'''  '^'^^  therefore  the  *defendant  cannot  plead 
two  outlawries  or  two  excommunicf.tions  in  abatement,  for  one 
would  be  sufficient  to  abate  the  writ,(«2)  but  misnomer  of  chris- 
tian and  surname  maybe  pleaded  in  one  plea.(72)  The  court  will 
not  permit  a  defendant  to  plead  at  the  same  time  in  abatement 


(./■)  3  T.  R.  185.  (/)  2  SnunfL  209.  note  c.  d. 

(^)4  East,  .i02.  500.    i  Saund.  or.  B:ic.  Abr.  lit.  Abatement,  P.    1  Lc!. 

n.  t.  But  see  the  argument  in  3  T.  R.  Rayni.  69i. 
!«''•  (k)   7  T.  R.  243.     1    S.iiind.   S.  >. 

(,'0  2  Saund.  209.  c.     36  Hen.  YI.  Bae.  Abr.  tit.  Abatement,  P. 
CIS.  (Old.  ibid. 

(/)  1  EHst,  63G.     2   Saund.  2O0.  d.         {m)  Bac.  Abr.  tit.  Abatement,  P. 
2  Ld.  Rajm.  1018,  lOlU.  G94.  (72)  Bac   Abr.  Misnomer,  F. 


OF  PLEAS  IN  ABATEMENt.  447 

ahd  in  bar  to  the  sa7?ie  matter,  as  non  est  factum  and  coverture    Qualities  and 

of  the  plaintiff  since   making  the  bond  ;(o)  but  in  some  ci.s.es  /"'"'"• 

the  defendant  may  plead  in  abatement  to  one  part,  unci  eitiicr 

in  abatement  or  bar  to  the  other  part  of  the  same  iieclara- 

tion  ;(/0  and  in  an  action   against  two  defendants,  each  may 

plead  distinct  matter  in  abatement  of  the  same  suit  ;(</)  or  one 

piay  plead  in  abatement  and  the  other  in  bar.(r) 

The  for?}!  of  a  plea  in  abatement  may  be  more  particularly 
considered  under  the  following  heads:  ist.  As  to  the  title 
of  the  term  ;  2dly.  The  commencement  3dly.  The  body  or 
subject  matter  ;  and  4lhly.  The  conclusion. 

With  respect  to  the  title  of  the  term,  as  pleas  to  the  juris- 
diction of  the  court  and  in  abatement,  ought  to  be  pleaded  be- 
fore a  general  impurtance,  and  witliin  four  days  inclusive  after 
the  delivery  or  filing,  and  notice  of  the  declaration,(.s)  such 
pleas  should  in  general  be  pleaded  of  the  term  in  which  the 
•writ  was  returnable,  unless  the  declaration  be  delivered  or  filed 
in  vacation,  or  so  late  in  the  term  that  the  defendant  is  not 
bound  to  plead  to  it  of  that  term,  in  which  cases  the  defend- 
ant may  within  the  first  four  days  inclusive  of  *the  next  term  ^  448 
plead  to  the  jurisdiction  of  the  court,  or  in  abatement,  entitling, 
however,  his  plea  of  the  preceding  term,(^)  or  he  may  plead 
to  the  jurisdiction  as  of  the  second  tbrm  with  a  general  sfieciaL 
imfiarlance.,  which  is  with  a  saving  of  all  advantages  and  excep- 
tions whatsoeverjCx")  or  he  may  plead  in  abatement  of  tlie  se- 
cond term  with  a  special  imparlance,  which  is  a  saving  of 
all  exceptions  to  the  writ,  bill,  or  count. («)  If  either  of 
these  pleas  be  entitled  of  a  subsequent  term  to  the  declara- 
tion, and  without  the  proper  special  imparlance,  the  plaintiff 
may  either  sign  judgmentj(w)  or  apply  to  the  court  by  motion 


(0)  Rep.  temp.  Hai-ihv.  1.35,  tlie  form  of  the  entr)',  post,   vol.   2. 

Ip)  Com.    Dig.   Abatement,   I.   5.  40S. 
Ante,  443.  {u)   Ante,    424.      R!ic.  Abr.   1.   tit. 

(fy)  III.  I.  6.  Abatement,  C.     2  Saund.   n.  2.     See 

(r)  III.  I.  7.  tlie  form  of  the    erAry,   post.   vol.  2, 

(v)  Ante,  422.  406,   407.     Com.  Dig.    Abatement,  I. 

(0  Ante,  422.  kc.    7  T.  R.  447.  n.  202  Sauiid.  1 .  n.  2. 
U.    I  Salk.  367.  Gilb.  K.  B.  344.  (w)  4  T.  R.  520.    7  T.  R.  218.  44"' 

(r)  Ante,  422.    Com.  Dij.  Abate-    n.  d.     2  Sa'md-  ;.  n.  ^ 
ment,  I.  19.     2  Sannd.    I,    n.  2.    See 

Vor..  T.  r  41  3 


448  OF  PLEAS  IN  ABATEMENT. 

Qualiiics  and  to  set  it  aside, (x)  or  he  may  demur  to  it,(j/)  or  allege  the  im- 
-'"""'  parlance  in  his  replication  by  way  of  estoppel  ;(z)  but  if  the 

plaintiff  reply  to  the  plea  instead  of  demurring  or  alleging  the 
estoppel,  the  fault  is  aided.(G) 

The  co7nmencemcnt  of  these  pleas  may  be  considered,  1st. 
As  to  the  statement  of  the  appearance,  either  in  person  or  by 
attorney  ;  Sclly.  The  nature  of  the  defence,  and  3dly.  The 
prayer  that  the  bill  or  writ  may  be  qucshed,  &c. 

Pleas  of  misnomer  must  not  begin  with  the^words  "  and 
*  449  "  ^'''^  ^""^^  ^  ^  ^^^^^^  ^y  ^'^^  name  of  *E  Z>,"  or  "  and  he  against 
•'  whom  the  plaintiff  hath  exhibited  his  bill  by  the  name  of 
"  E  D"  Sec.  for  that  would  be  repugnant. (6)  Pleas  to  the 
jurisdiction  must  be  pleaded  in  person,  because  the  appoint- 
ment of  an  attorney  of  the  court  admits  its  jurisdiction  ;(c) 
but  pleas  in  abatement  in  general  may  be  pleaded  by  attorney, 
because  the  jurisdiclion  of  the  court  in  the  latter  case  is  not 
disputed.; (/)  The  principle  to  be  extracted  from  the  cases  is 
stated  to  be,  that  a  defendant  cannot  plead  by  attorney  in  those 
cases  where  the  doing  so  would  contradict  the  in)port  of  the 
warrant  of  attorney. (C)  It  appears  advisable  to  frame  pleas  of 
misnomer  as  if  pleaded  in  person  and  not  by  attorney,  though 
there  are  decisions  that  the  plaintiff  cannot  demur  on  account 
of  a  mistake  in  this  respect,  but  should  refuse  to  accept  the 
plea  ;(y)  coverture  also  should  be  pleaded  in  person  .(^'•)  and 
where  an  infant  pleads  it  must  be  by  guardian  and  not  by  at- 
torney or  prochcin  amy.{h') 

The  nature  of  defence  has  already  been  stated  ;(?)  pleas  to 
the  jurisdiction  and  in  abatement  should  be  after  half  and  be- 
fore full  defence. (y)     It  is  advisable  to  make  the  former  dc' 


(.r)  6  T.  S.  373.  (c)  Ante,  412.    2  Sannd.  209.  b.  c. 

(  J/)  6  T.  H.  3C9.     1   Wils.   2C1.     2  Summary  on  Pleading,  51. 

B.  k  P.  .384.  ,)  Inst.  CI.  40.    '2  Sannd.  (J)  Ante,  412.     2  Sannd.  209. 

1.  n.  2.  (e)  Sunimaiy  on  Pleading,  50.  &c. 

(;)  2Saund.  l.n.  2.     See  the  form  (/)    2  Saund.   209.  b.    c.      1    Ld. 

of  estoppel,  1   Latw.  23.     I  Wentw.  Raym.  SO.).     Summary  on  Pleading, 

Index,  13.     3  Inst.'Cl.  39.     Clift.  18.  50,51. 

pi  46.     19.  pi.  50.    20.  pi.  53,  54.  (§)  2  Sannd.  209.  c. 

(n)  2  Saund.  1.  n.  2.     1  Vont.  236.  (h)  Ante,  412.     See  the  precedent^ 

{b)  Ant'.',  411,  412.      5  T.  R.  487.  post,  vol.  2.  410. 

8  T.  K.  515.     3  Wils.  413.  (/)  Ante,  412  to  414. 

U)  Aute,  414. 


OF  PLEAS  IN  ABATEMENT.  449 

fence,  though  it  seems  questionable  whether  the  plaintiff  could  Qualities  and 
demur  for  the  omission,  or  object  otherwise  than  by  refusing  >''""■ 
to  accept  the  pled.(X-)  ^. 

*Pleas  to  the  jurisdiction  and  personal  privilege  to  be  sued  *  450 
in  another  court,  usually  commence  wiihoui  any  prayer  of  judg- 
ment, and  conclude^  "  and  this  he  the  said  plaintiff  is  ready  to 
"  verify,  wherefore  he  prays  judgment,  if  the  said  court  of  our 
"  said  lord  the  king,  here  will  or  ought  to  take  cognisance  of 
"  the  said  plea,"  or  "  whether  he  ought  to  be  compelled  to 
"  answer ;"(/)  but  sometimes  these  pleas  commence  also  w  ith 
a  similar  prayer.(7?z) 

In  pleading  to  the  ficrson  of  the  plaintiff  or  defendant,  in  re- 
spect of  disability  to  sue  or  be  sued,  and  not  merely  on  account 
of  the  non-joinder  of  another  party,  the  plea  should  conclude 
with  a  prayer  •'  if  the  plaintiff  ought  to  be  answered,"  or 
"  whether  the  defendant  ought  to  be  compelled  to  answer  ;"(«) 
and  these  pleas  frequently  begin  with  a  similar  prayer,  as  alien 
enemy,  kc.;o)  and  a  plea  of  this  description  concluding  to  the 
writ  would  be  bad  ;(/i)  but  pleas  of  coverture  of  the  plaintiff 
or  defendant,  as  the  objection  goes  rather  to  the  non-joinder  of 
the  husband  than  to  the  disability  of  the  fcme^  conclude  to  the 
writ.('y)  If  the  defendant  plead  that  the  plaintiff  is  excom- 
municated, or  any  other  temporary  disability,  the  plea  should 
conclude  with  praying  that  the  suit  may  remain  without  day 
vmtii,  Scc.(r)  and  where  *death  of  the  plaintiff,  since  the  issu-  *   451 

ing  of  the  writ  is   pleaded,  it  should    conclude,  if  the   court 
will  further  proceed,  £cc.(5) 

Where  the  defendant  pleads  in  abatement  to  the  writ.,  for 
matter  ajijiarent  on  the  face  of  it,  it  is  said  that  he  should  be- 
gin, as  well  as  conclude,  his  plea,  by  '•'■  praying  judgment  of  the 


{k)  Com.   Dig.   Abatement,  I.   16.  (/»)    Com.  Di;,^  Abatement,  1.12. 

Skin.  58-2.     Ante,  41 '2.  (ry)  Post,  vol. '2.  4l4,  4l5.    Lil.  Eut. 

(0    !2  Saur.d.  '209.    <1.      Com.    Dig.  1.  r2,3.     Asi.  Eiit.  9.      3  Inst.  CI.  70. 

Abatement,  I.  12.     Bac.  Abr.  Abate-  I  Wenlw.  47. 

ment,  P.     Ante,  433.  (r)    12  Mod.   400.     3  Lev.    208.— 

(m)    See  the    precedent,  8  T.  R.  Lutw.  I'J.      1  Sti-a.  521.      3  Inst.  CI. 

631.     Post,  vol. '2.  414.  18.     2Saund.  210. 

(h)    2  Saund.   9.   n.    10.   209.  d.—  (fi)  Com.    Dig.    Abatement,  I.   12. 

Lalcb.  178.     Lil.Eut.l.  3  Lev.  120.      4  E ait,  502.      2  Sfiuml 

(o)  Lil.  Ent.  1.    Lutw,  IGOI.    Ast.  209.  d. 
Eu'..  11. 


451  OF  PLEAS  IN  ABATEMENT. 

Qvalities  and  "  ivrit,  and  that  the  same  may  be  guashed."U)  But  where  A© 
plea  is  for  matter  dehors.,  as  misnomer,  &c.  the  plea  should 
oniy  conclude  with  that  prayer. (,-y)  The  courts  having  now 
established  a  rule,  that  oyer  of  the  writ  cannot  be  allowed,(M) 
a  vuricince  between  the  writ  and  count,  or  declaration,  can  be 
no  longer  pleaded,  and  many  of  the  decisions  in  the  books  as 
to  the  form  of  the  plea,  are  no  longer  applicable,  and  now  in 
gcnercd,  a  plea  in  abatement  of  the  writ  may  be  both  of  the 
writ  and  declaration,  and  it  must  be  so  where  it  is  intended  to 
plead  in  abatement  only  of  part  of  the  writ,  and  the  cause  of 
abatement  arises  only  on  some  of  the  counts  in  the  declara- 
tion.(7^)  If  the  action  be  by  bill.,  the  plea  should  conclude  by 
praying  judgment  of  the  bill,  and  not  of  the  declaration  only, 
which  is  a  conclusion  in  bar;Cr)  it  may,  however,  be   of  the 

*   452  bill  'i»d  declurution,(!/)  and  *if  a  plea  in  abatement  to  the  writ 

were  to  conclude  if  the  defendant  ought  to  answer  to  the  said 
bill  it  is  insufficient. (z) 

Affidavit  of         At  common  law  when  the  defendant  pleaded  a  foreign  plea, 

^^^  '•  the  nature  of  which  has  already  been  stated, (a)  he  was  obliged 

to  make  oath  of  the  truth  of  it ;  but  this  was  not  necessary  in 
the  case  of  a  plea  to  the  jurisdiction  or  any  plea  in  abate- 
ment.(/-i)  But  now  by  4  Ann.  c.  16.  s.  II.  "  jig  dilatory  plea 
"  shall  be  received  in  any  court  of  record.,  vmless  the  party  of^- 
"  fering  such  plea  do,  by  aflidavit,  prove  the  truth  thereof,  or 
"  sliew  some  probable  matter  to  the  court  to  induce  them  to 
*'  believe  that  the  fact  of  such  dilatory  plea  is  true."  This 
statute  extends  to  criminal  as  well  as  civil  cases,(c)  and  not 
only  to  pleas  in  abatement  but  to  all  dilatory  pleas,  which  if 
found  untrue  would  not  determine  the  action,  and  are  only  in 


(0  SSaiiml.   209.   a.  11.    1.   209.   d.  (j()  Tidd's  Prac.  4th    edit.  S77.— 

Com.  Dig.  Abatement,  1.12.      Lutw.  Post,    vol.  2.   416,  417.      Com.  Dig, 

11.     12  Mod.  525.  Abatement,  I.  12. 

(f)  Id.  ibid.  (:)  2  Saund.  209.  d.      5  Mod.  146. 

00  1  B.  &  P.  646.  n.  b.      1  Saund.  1  Salk.   297,  298.      3  Bl.  Com.  303. 

318.     6T.  R.  364.    See  the  propriety  Com.  Dig-.  Abatement,  i.  12. 

of  this  regulation   questioned  in  3  B.  (n)  Ante,  429.       1  Saund.  98.  n.  I. 

&  P.  399.     7  East,  384.  {b)  1  Saund.  98.  n.  1.      Carth.  402^ 

(70)  2  Saund.  210.  c.  Styles,  435.     5  Mod.  335. 

{x)  2  Saund.  209.  d.      5  Mod.  144.  (c)  3  Burr.  1617. 
12Mod.  133.  S.  C.    10  Mod.  192.  210, 
''1 1 


OF  PLEAS  IN  ABATEMENT. 


452 


delay  of  it,  as  aid  prayer,  in  a  real  action,(rf)  or  a  plea  in  scire  Affidavit  of 
facias  against  lertenants  that  there  is  another  tertenant  not 
named,  though  these  pleas  are  not  strictly  in  abatement. (e) 
But  such  pleas  in  bar  as  are  usually  termed  sham  pleas,  are 
not  dilatory  pleas  within  the  meaning  of  this  statute  ;  and  an 
affidavit  is  not  necessary  in  all  cases,  for  the  statute  extends 
only  to  such  matters  as  are  dehors  the  record,  and  not  to  such 
matters  as  will  appear  to  the  court  on  inspection  of  their  own 
proceedings,(./')  *as  the  want  of  addition  in  an  original  writ  *  ^^» 
when  that  matter  was  pleadable  in  abatementjC?-)  or  privilege 
as  an  attorney  of  the  same  court,  to  be  sued  by  bill  •,(Ji)  because 
in  the  first  instance  the  defect  in  the  writ  is  apparent  on  the 
face  of  it ;  and  in  the  latter,  the  court  by  examination  of  their 
own  record,  may  ascertain  the  truth  of  the  plea  ;  but  where 
the  defendant  pleaded  after  oijer  of  the  original  that  it  was  not 
returned,  the  court  set  aside  the  plea  for  want  of  an  affidavit. (z) 
The  affidavit  may  be  made  by  the  defendant,  or  a  third  pcr- 
son,(^')  and  before  the  declaration  is  actually  filed  or  deliver- 
ed:(A:)  it  must  be  properly  intituled  in  the  cause, (/)  and  be  posi- 
tive as  to  the  trirth  of  every  fact  contained  in  the  plea,  and 
should  leave  nothing  to  be  collected  by  inference  ;(m)  it  should 
be  stated  that  the  plea  is  true  in  substance  and  fact,  and  not 
merely  that  the  plea  is  a  true  plea  ;(n)  and  if  there  be  no  affida- 
vit, or  it  be  defective  in  any  particular,  the  plaintiff  may  treat 
the  plea  as  a  nullity,  and  sign  judgment,(o)  or  move  the  court 
to  set  it  aside.(/;)  *   45^ 

*Where    misnomer   either    of  the  plaintiff  or  defendant  is  Hep/ication 
truly  pleaded,  the  plaintifTmay  amend  his  declaration,  and  need  Ic'cedin^L 


(d)  2  P..  k  P.  .384.     2  Saund.  210.  e. 

(e)  2  ShuiiiI.  210.  e. 

(/)  3  B.  k  P.  SOT.  Piac.  Reg.  5. 
Lil.  Raym.  1  +09.     Saver's  Rep.  293. 

(?•)  lA.  Raym.  1409.  Pi-ac.  Reg.  5. 

(A)  Claridge,  gent,  one,  &c.  ads. 
Macdougiil,  Trill.  Term,  47  Geo.  III. 
K.  B.  3  B.  J*c  P.  .397.  But  see  2 
Stra.  738.  and  Cora.  Dig.  Abatement, 
I).  0.  If  the  plea  be  untrue,  or  the 
defendant  has  ceased  to  be  an  attor- 
ney, the  plea  may  be  set  aside.  Prac. 
Reg.  8. 


(0  1  Stra.  f>39.     2  Ld.  Raym.  1409. 

(./)  Barnes,  344.     Prac.  Reg.  C. 

{h)  4  East,  348. 

(/)  Bac.  Abr.  Abatement  O.  2 
Stra.    1101.     Barnes,  348. 

(m)  Saver's  Rep.  293. 

{71)  2  Stra.  705.  See  the  prece, 
dents,  Lil.  Ent.  1.  and  post,  vol.  2. 
412.417. 

(o)  2  Saund.  210.  e.  1  T.  R.  277- 
689.     5T.  R.  210.     7T.  R.  298. 

(/»)  1  Stra.  f)38.  Sayer's  Rep.  19. 
293.     3  Burr.  1617. 


454  OF  PLEAS  IN  ABATEMENT,  &c. 

Replications     not  enter  a  cassetur  billa  or  "  breve  ;"(</)  but  where  the  non- 

an<l  other  pro-   .    .  ^ 

ceedin^s.         joinder  of  one  of  several   defendants  is  pleaded,  the   piauitiff 

cannot  amend,  but  must  enter  a  cassetur.,  and  commence  a 
fresh  action. (r)  And  when  the  plea  is  true,  and  the  plaintiffis 
not  at  liberty  to  amend  he  should  enter  his  cassetur  before  he 
comiiiciKcs  a  fresh  action,  for  otherwise  the  defendant  may 
plead  in  abatement  the  pendency  of  the  first  action  (a)  If  the 
plea  be  untrue,  in  fact,  the  plaintiff  should  rclitij  ;  or  if  it  be  in- 
sufficient in  point  of  law,  he  may  demur.,  and  in  some  cases  sign 
judgment,  as  for  want  of  a  plea  ;(<)  though  if  the  plea  be  mere- 
ly defective  in  point  of  form,  the  plaintiff  should  deraur.(w) 
And  where  the  defendant  has  ippeared  in  the  name  by 
which  he  was  sued,  such  appearance  may  be  replied  by  way 
of  estoppel. {v)  When  the  plea  consists  of  matter  of  fact,  which 
the  plaintiff  denies,  the  repjicution  mjy  bet^in  without  any  alle- 
gation that  the  writ  or  bill  ouj^ht  not  to  be  quashed  ;(w)  it  must 
not  be  as  to  a  plea  in  bar.(-r)  because  that  would  be  a  discon- 
tinuance, but  should  conclude  to  the  country ;  and  which  is 
*  455  proper  where  to  a  plea  of  *niisnomer  the  plaintiff  replies  that 
the  defendant  is  known  as  well  by  the  one  name  as  the 
other  :(</)  there  are,  hov/ever,  precedents  in  which  the  plaintiff 
has  concluded  with  a  formal  traverse  and  verification  ',(z)  and 
when  this  is  adopted,  it  was  laid  down  by  Lord  Holty  that  the 
plaintiff"  ought  to  pray  damages,  because  if  it  be  found  against 
the  defendant,  the  juiy  must  assess  the  plaintiff's  damages, 
and  final  judgment  is  to  be  given  ;  but  where  the  plaintiff  con- 
fesses the  defendant's  plea,  and  avoids  it  by  other  new  matter, 
he  should  not  pray  damages,  but  must  maintain   his   writ. (a) 


(9)  7  T.  R.  f.9S.     3  Anstr.  935.     1  if  the   plea   commence    or  conclude 

B.  &  P.  40.     It  is  the  practice  not  to  improperly  in  bar.     Hac.  Abi*.  Abate- 

pennit  such    amendment  if  the  de-  meiit,  8.      Com.    Dig.  Abatement,  I. 

fendant  has  previoiiski  maiie  a  tender.  15. 

(r)  See  the  form,  post,  vol.  '2.  50O.  {y)  1  B.  8c  P.  60.     1   East,   Si'Z.     2 

(s)    Ante,  443.    n.  v.      Bac.    Abr.  Wils.  367.     See  the  precedents,  post^ 

Abatement,  VI.  vol.  2.  589,  590.     1  Wentw. 

(0  3  B.  k  P.  395.  (s)  Lil.  Ent.  1,  2.     Co.  Ent.  160. 

(?0  3T.  R.  1S5.  («)  '2  Sannd.   '211.  n.   3.      3   Med. 

(f)  Post,  vol.  2.  590.     2  New  Rep.  2S1.     1  Ld.  Raym.  338.   594.     2  1^. 

453.  Rayra.  1022.     Bac.  Abr.  Abatement, 

(w)  1  B.  &.  P.  61.  P.    Com.  Dig.  Abatement,  I.  12.  See 

(x)  Carth.  187.     Com.  Dig.  Abate-  the  precedents,  I  "\yentw< 
ment,  I.  15.     1    E.   &i  P.  61,  Miter^ 


AND  PROCEEDINGS  THEREON.  455 

If  a  replication  to  a  plea  in  abatement  of  llie  ivrit^  begin  "  that  liepHcdtions 
"the  said  declaration,"  ought  not  to  be  quushed,  but' conclude  ^c7edin'^s  ' 
properly,  it  is  sufficient  ;  for  such  words  may  be  rejccied  as 
surplusage  :  and  ii  is  not  necessary  in  tlie  beginning  of  the  re- 
plication to  say  that  the  writ  ought  not  to  be  quuslied  ;  for  in 
favour  of  the  plaintiff  the  court  will  give  judgment  according 
to  the  fact,  without  reference  to  tiic  prayer  of  judgment. (6)  If 
an  issue  in  fact  be  joined  upon  the  replication,  and  found  for 
the  plaintiff,  the  jury  should  assess  the  damages,  and  the  judg- 
ment is  peremptory  for  the  delay,  cjuod  recujieret^  and  not  <jUod 
resfiondeat  ;(c)  and  the  same  rule  prevails  in  indictments  for 
misdemeanours,  though  in  cases  of  felony  in  favortm  vi(e,  it 
is  otherwise. (ri) 

*If  the  plaintiff  demur,{e)  it  does  not  appear  to  be  necessary  *   45S 

to  assign  any  special  causes,  for  it  has  been  decided  on  the 
statute  of  Elizabeth^  (the  language  of  which  is  similar  to  that 
of  the  statute  4  Jan.  c.  16.)  that  the  statute  only  applies  to 
pleas  in  bar  :(/)  however,  it  appears  most  advisable  to  demur 
specially  where  the  plea  is  merely  informal. (5-)  Where  the 
plea  properly  commences  and  concludes,  as  in  abatement,  but 
is  insufficient  in  some  other  respect,  the  demurrer  should  pray 
judgment  that  the  defendant  may  answer  further  thereto,  or 
merely  with  the  latter  words,  and  should  not  conclude  with  a 
prayer  of  damages  ;  for  the  plaintiff  ought  not  to  conclude  in 
bar,  but  only  affirm  his  writ. (A)  So  where  the  plaintiff  rt-filies 
to  a  plea  in  abatement,  and  the  defendant  demurs  to  the  repli- 
cation, the  plaintiff  should  not  conclude  his  joinder  in  demur- 
rer with  a  prayer  of  judgment  of  his  debt  or  damages,  but 
should  merely  pray  that  the  defendant  may  answer  over  aguin.(2) 
And  where  the  plaintiff  demurred  to  a  plea  in  abatement,  as 
in  bar,  praying  judgment  and  damages,  and  the  defendant  joined 


(A)  1  B.  k  P.  fiO.  (./")  2L<1.  U.ivra.  1015.   and  see  1 

(t)  1  Kast,  544.    2  Wils.  318.  Com.  L<).  Rayni.  .337.     1  Saik.  194.    Tidd'n 

Di;.^.  Abatement,  I.  14,  15.    Hic.  Abe.  Prac.  4tli  edit.  8S5. 

Abatement,  P.     2  Sauud.  210.  n.  3.  (^)  3  T.  R.  186. 

Gilb.  C.  P.  .13.  (/i)  2  Saiind.  210.  g. 

(J)  8  East,  107.  (0  1  Wils.  302.     2   Sattiul.   210.    % 

(e)  See  the  urccedents  referred  to  210.  u.  J. 
in  2.SaiiiuI.  210.   n.   2.     Po.st,    vol.    2 
679.  and  joinder  llicreto,  id.  682. 


456  OF  PLEAS  IN  ABATEMENT,  &c. 

liepUcutions     as  ill  bar,  it  was  held  to  be  a  discontinuance,  because  the  de- 

and  other  pro-  .  /        •        i 

eetdings.  inurrer  in  bur  was  no  answer  to  the  plea  in  abatement,  and  a 
discontinuance  of  part  is  a^liscontinuance  of  the  whole  '.{j)  the 
plaintiff,  however,  may  amend,  and  the  mistake  would  be  aided 

*  457  by  a  *verdict.(A:)  But  where  the  plea  in  abatement  improper- 
ly commences  or  concludes  as  a  plea  in  bar,  the  plaintiff  may 
demur  either  in  bar  or  abatement ;  and  if  he  adopt  the  former, 
which  is  most  advisable,  he  may  conclude  his  demurrer  as  in 
bar  and  with  a  prayer  of  damages,  and  the  judgment  will  be 
final. (/)  On  the  argument  of  a  demurrer  to  a  plea  in  abate- 
ment, or  to  a  replication  thereto,  the  defendant  cannot  take  any 
objection  to  the  declaration,  for  nothing  but  the  writ  is  then  in 
question, (w)  unless  where  matter  is  pleaded  in  abatement 
which  might  be  pleaded  in  bar.(n) 

If  there  be  judgment  for  the  plaintiff  on  demurer  to  a  plea 
in  abatement,  or  a  replication  thereto,  the  judgment  is  in  general 
interlocutory,  quod  resfiondeat  ousler.(o)  Where,  however,  a 
plea  containing  matter  which  can  only  be  pleaded  in  abatement, 
improperly  commences  or  concludes  in  bar,  the  judgment  on 
demurrer  may  be  final  :{/i)  and  the  same  rule  prevails  where 
matter  in  abatement  is  pleaded  after  the  last  continuance  ;((/) 
and  if  there  be  judgment  of  resfiondeat  ouster,  no  other  plea 
in  abatement  will  be  allowed. (7-) 

'^  458  The  judgment  for  the  drfendanC  on  a  plea  in  *abatement, 

whether  it  be  on  an  issue  in  fact  or  in  law,  is  that  the  writ  or 
bill  be  quashed  ;(&)  or  if  a  temporary  disability  or  privilege  be 
pleaded,  that  the  plaint  remain  without  day,  until,  &:c.(/)  If 
the  plaintiff  succeed  on  demurrer  to  a  plea  in  abatement,  and 


(./)  Show.  255.  Carth.   187.  I  Salk.  Wils.  367.      See  the    forms,    Tidd's 

21S.     I  East,  54-2.     '2  Saiiiul.  210.  g;.  foi-ms, '2-J3.     10  Wentw.  61. 

(i-)  1  Wils.  302.     1  Salk.  218.  (/<)  1  East,  036.     Lutw.  41.     Com. 

(/)  Bae.  Abr.  Abatement,  P.  Com.  Dii;;.    Abatement,   I.    15'     Bac.    Abr. 

Di.<.  Abatement,  I.  15.  Abatement,  P. 

(;h)  Salk.  212.     Lutw.  1592.  Carlh.  (9)  Com.  Dig.  Abatement,  I.  15. 

172.     Willes,  478.     Brx.  Abr.  Abate-  (r)  Bae.   Abr.   tit.   Abatement,    O. 

menl,  P.     Com.   Dig.  Abatement,  I.  Com.  Dig.  Abatement,  I.  3.  2  Saund. 

14.  40,  41. 

(/O  Lutw.  1 604.    Com.  Dig.  Abate-  (s)  Bac.  Abr.  Abatement,  P   Gilb. 

nient,  I.  14.  C.   P.    52.      See  the    precedents,   10 

(0)  2  Saund.  210.  n.  3.    Com.  Dig.  Wentw.  Index,  61. 

Abatement,   L   14.     I   East,  544.    2  {()  Lutw.  ID.    Clift.   3.    2  Saund- 

210. 


OF  PLEAS  IN  ABATEMENT.  458 

the  judgment  is  interlocutory,  .re.9/^on(/fa^  ouster,  there  is  no  jfi'pli cations 
judgment  for  costs,  because  the  statute  of  Gloucester  only  gives  "^etZ/K'-T^"' 
costs  where  damages  are  recovered  ;(«)  but  when  the  defend- 
ant's plea  is  on  issue  found  to  be  untrue,  the  judgment  is  final, 
and  the  plaintiff  will  recover  costs.(Ty)  If  the  plaintiff  enter  a 
cassetur  billa  or  breve,  he  is  not  liable  to  costs. (^y)  On  an  is- 
sue found  for  the  defendant,  he  is  entitled  to  costs,  but  not  if 
he  succeed  on  demurrer. (z-) 


((/)  L(l.  Raym.  992.     1  Salk.   194.         (tv)    Id.   ibid.      Tidd's   Prac.  4tU 
Tidd's  Forms,  292.    Tidd's  Prac.  4lU     edit.  G23.     HuUock,  131. 
eilit.  846.  &c.  (.x)  Ld.   Raym.  992.     1  Salk.  104. 

{v)  U.  Mi.  IluUock,  131.     Tidd's  Prac.  4th  e*t- 

885. 


Vol.  I.  [•  42   j 


459 


CHAPTER  VII.   ^ 

OF    PLEAS    IN    BAR. 

Jr  LEAS  in  bar  deny  that  the  plaintiff  has  any  cause  of  ac- 
tion,(a)  and  do  not,  like  pleas  in  abatement,  give  a  better 
writ  ;(Z>)  they  either  conclude  the  plaintilT  by  matter  of  estop- 
pel, -which,  however,  rarely  occurs  in  a  plea.(c)  or  shew  that 
the  plaintifl' never  had  any  c!luse  of  action  ;  or  admitting  that 
he  had,  insist  that  it  is  delernjined  by  some  subsequent  matter. 
They  are  also  either  to  the  whole  or  to  a  part  of  the  declara- 
tion ;  and  where  there  is  only  a  defence  to  a  part,  it  is  in  ge- 
neral advisable,  on  account  of  costs,  to  confine  the  plea  to  that 
part.(rf)  We  have  seen  that  pleading  is  in  general  a  mere 
statement  of  facts, {c)  and  pleas  in  bar  state  the  various  defences 
of  which  under  the  circumstances  of  each  particular  case,  the 
defendant  is  at  libei'ty  to  avail  himself  in  a  court  of  laiv.  Mat- 
^  460  ter  of  *defence  in  equity ,(./")  or  merely  founded  on  the  prac- 
tice of  the  court,  is  not  in  general  pleadable, (j')  and  therefore 
biiil  cannot  plead  that  the  principal  is  a  bankrupt,  and  has  ob- 
tained hi%  certificate. (A)  It  would  be  foreign  to  the  purpose 
of  this  treatise  lo  attempt  to  state  all  the  various  defences  in 
personal  actions ;  those  which  most  usually  occur  in  practice 
are  given  in  their  natural  order,  in  the  fo!lo\nng  analytical  ta- 
bles ;(z)  and  the  mode  in  which  they  should  be  taken  advan- 
tage of  arc  afterwards  more  fully  stated. 


(rt)  See  the  definition,  Co.  Lit.  303.  (.i)  5  East,  261.     '  East,  3i25. 

b.     tfcntli's  Maxims,  and  6  Co.  7.  (<•)  Ante,  215. 

(/))  Ante,  445.  (  /')  7  East,   153.     8  East,  344, 

(c)  Rac.  Abr.  Plea-,  I.  11.     5  !Ien.  (^)-1Ya%\.,  ^^1.     7  East,    153.     4 

VH.  14.     1  Leon.  77.     Sav.    8G.     As  East,    311.       TIdd's    Prac.    4th   edit, 

pleading  matter  of  estoppel  more  fre-  10-22. 

quently   occurs   in    replications    and  (/()  2  B.  &  P.  45.     7  East,  153,  154. 

subsequent  proceeding;?,   the    p(ii:its  (/)  .See  also  Com.  Dig.  Pleader,  ai 

relating  to  it  will  be  hereafter  coasi-  to  tlio  different  defences  and  picas  in 

dered.  each  particular  action. 


OF  PLEAS  IN  BAR. 


--H61 


VIIE  DEFE.VCES  TO  .ICTIO.VS  O.V  CO:\'^rnACTS  .VOT 
LW'JJER  SEAL. 


t 


< 


rist.  Deny  that  there  ever  was  cause  of  action. 

"Ist.  Deny  that  a  suiricient  contract  was  made. 
1st.  That  no  contract  was  in  fact  niacle. 
2dly.  Defendant  incapable  to  contract, 
fist.  Infancy. 

j  2dly.  Lunacy,  Drunkenness,  Sec. 
3dly.  Coverlure. 
thly.  Duress, 
odly.   insulikiency    or  iilegulity  of  the  cor.si- 
«^  deration,  or    made  under  a  misLake 

or  fraud. 
4lhly.  The  act  stipulated  to  be  done,  ii!ci!;al  or 

iiispr-ssible. 
othly.  The   form  of  the    contract   insufficient 
under  statute  of  frauds,  or  not  duly 
stamped,  o:c. 
2dly.  Admit  a   sufficient  contract,  but  shew  that  be- 
fore breach  there  was — 
1st.  A  release. 
2diy.  Parol  discharge. 

3dly.  Alteration  in  terms  of  contract  by  consent. 
4tlily.  Nbn-perform.;nce  by  plain  iff  of  a  con- 
dition precedent,  alteration,  kc. 
othly.  Performance,  payment.  Sec. 
6thly.  Contract  become  illegal  or  impossible  lo 
perform. 

2dly.  Admit  there  once  was  cause  of  action,  but  avoid  it  by 
subsequent  or  other  matter. 
1st.  Disability  of  the  plaintiH"  to  sue. 
1st.  Alien  enemy. 
2dly.  Attainted. 
I  odiy.  Outlaw. 

l^4thly.  A  bankrupt,  insolvent  debtor,  Sic. 
2dly.  Defendant  not  liai)le. 

C  1st.  A  certificated  bankrupt. 
^  2dly.  An  insolvent  debtor. 
3dly.  Debt  recoverable  only  in  a  court  of  conscience. 
4thly.  Cause  of  action  discharged. 
1st.  By  payment. 
idly.  Accord  and  satisfaction. 
3dly-  lorei'j,n  attachment, 
liidy.  Tender. 

othly.  Account  stated,  and  a  negotiable  secu- 
■<  rity  given. 

6thly    Arbitrament. 
7tlily.  Former  recovery. 
8thly.  Hi^^her  secuiity  given. 
9thly    A  release. 
lOtblv.  Matu'e  of  limitations. 
Jl'hly.  Set-off. 
^5thly.  Pleas  by  executors,  See. 


462* 


OF  PLEAS   IN  BAR. 


*TnE  DEFEJVCES  TO  ACTIOJ\''S  OJV  COJ^TBACTS 
UJYDEIi  SEAL. 


< 


1st.  Deny  that  there  ever  was  cause  of  action. 

'1st.  No  deed  in  fact  made,  or  that  it  was  delivered 

as  an  escrow. 
2dly.  Deed  invalid. 

IsL.  Defendant's  incapacity  to  contract, 
fist.  Infancy. 
J  2dly.  Lunacy, 
j  3diy.  Coverture. 
■^  (^4lhly.  Duress. 

2clly.    Illegality  of  consideration  or  contract. 
j  3dly.    Deed  obtained  by  fraud,  &c. 
■^  \^4thly.  Contract,  impossible  to  perform. 

odly.    Admitting    that  the  deed  was  originally  valid, 
excuse  of  performance. 
1st.    lu'asure,  alteration,  Sec. 
2dly  Deed  become  impossible  to  perform. 
oclly.  Become  illegal  to  perform. 
1  4thly.  jYoii-daimiiJicatus  by  the   plaintiff  of  a 

condition  precedent. 
\^5\.\\\Y.A''on-daiiwiJicatus,  no  award,  &c. 
4thly.  Performance  in  pursuance  of  the  deed. 
C  1st.  Solvit,  ad  diem. 
\  2dly.  Performance,  Sec. 
2d]y,  Admit  that  plaintiff  once  had  cause  of  action,  but  avoid 
it  by  subsecjuent  or  other  matter, 
pi  St.  Disability  of  plaintiff  to  sue. 
1st.  Alien  enemy. 
2dly.  Outlaw. 
_  3dly.  Bankrupt,  insolvent  debtor,  he. 
2dly.  Defendant  not  liable. 

C  1st.  A  certificated  bankrupt. 
\  2dly.  An  insolvent  debtor. 
3dly.  Cause  of  action  discharged. 
1st.  By  payment /?os^  (//«".'«. 
2dly.  Accord  and  satisfaction. 
3dly.  Foreign  attachment. 
4thly.  Tender 
<^  5thly.  Arbitrament. 
6thly.  Former  recovery. 
Zthly.  Release. 

8thly.  Presumptive  limitation. 
^9thly.  Set-off. 
i^4thly.  Pleas  by  executors,  heirs,  devisees,  &p. 


\JV. 

{ 


OF  PLEAS    IN  BAR. 


*46! 


*THE  DEFEJ^CES  TO  JPIWCEEBLYG.S  O.V  J  RECORJ). 


I'lst.  On  judgments. 

fist.  Deny  there   ever   was  cause  of  action,  nul  iiel 

I  record. 

2dly.  Admit  there  once  was  cause  of  action. 
{1st.    Disability  of  plaintiff. 
2dly.  Defendant  not  liable  to  be  sued. 
Discharge  under  Lords'  act,  £cc. 
3dly.  Matter  in  discharge, 
fist.  Payment. 
2dly.  Release. 
3dly.  Levied  hy  Jieri  facias . 
4thly.  By  elegit. 
5thly.  By  ca.  sa. 
6thly.  I  lenc  administravit . 
_7thly.  Implied  limitations. 
2dly.  On  recognisances  of  bail. 

1st,  Deny  that  there  ever  was  cause  of  action. 

1st.   J^'ul  tiel  record  of  judgment  or  recogni- 
sance. 
2dly.  No  ca.  sa. 
"S  3dly.  Death  of  principal. 
j  4thly.  Render  of  principal, 
^5thly.  Errror,  supersedeas.^  Sec. 
__2dly.  Admit  that  there  once  was  cause  of  action. 
r  1st.  Disability  of  plaintiff  to  sue. 
X  2dly.  Defendant  discharged  by  bankruptcy,  Sec. 
(_  3dly.  Matter  in  discharge. 
1st.  Payment. 

2dly.  Release  to  principal  or  bail. 
3dly.  Fi.  fa. 
4thly.  Elegit. 
5thly.  Ca.  sa.  &c. 


THE  I)EFEJ\'CES  TO  ACTIOJK'S  OJV  STATUTES. 


1 


1st.  Denial  of  the  fact. 

jYil  debet. 

Not  guilty. 
2dly.  Prior  suit  depending  for  the  same  offence. 
,3dly.  Former  recovery  for  the  same  offence. 


464* 


OF  PLEAS  IN  BAR  IN  GENERAL. 


2rlly. 
3dly. 


<; 


<; 


1 


.3clly. 


2dly, 


*THE  DEFE.YCES  LV  ACTIO.VS  FOR  TORTS. 
'1st.  Deny  that  plaintiff  ever  had  cause  of  action. 

1st.  Deny  that  defendant  was  guilty  of  the  t07-t  com- 
plained of. 

1st.  In  case  or  ti-over,  not  guilty  of  the  pre- 
mises. 
In  detinue,  noji  detinet. 
In   replevin,  21011    cc/iit,  or   cefiit  in  alia 
loco,  or  property   in  defendant   or    a 
strant^er. 
4lhly.  In  trespass,  notguiilyof  the  trespasses. 
5thly.  Id  ejectment,  not  guilty  of  the  trespass 
and  ejectment. 
2dly.  Justify  the  act. 
1st.  In  case. 

The  words  were  true. 
2dly.  In  replevin. 

Avowries  and  cognisances  for  rents, 
damagr-frasarit,  8cc.  (see  the  pleas  in 
vol.  2.  Analytical  table  XV.  XVI.) 
In  trespass. 
1st.  To  persons. 

Son  assault  demesne,    8cc.  (see 
the   pleas   in   vol.  2.   Analy- 
tical table  XVI.  XVII.) 
To  personal  property. 
Distresses    dMmage-fcasant,  Sec. 
(see  the  pleas   in  vol.  2.  Ana- 
lytical table  XVI.) 
3dly.  To  real  property. 

Liberum  tencmentum,  rights   of 
common,    ways,  Sec.  (see    the 
pleas     in     vol.    2.     Analytical 
table  XVII.) 
Excuse  the. act. 
'1st.  In  case. 

That  another  person  uttered  the  words, 
and  defendant  only  repeated  them. 
2dly.  In  ti-cspass. 

Amicai)ie  contest. 
Inevitable  necchsity. 
Escape  of  cuttle  by  defect  of  fences,  Sec. 
Chasing    sheep    iniermixed   with    tlie 
plaintif}''s,  he.  Sec. 
jdly.  Admit  that  plaintilV  once  had  cause  of  action,  but  in- 
sist that  it  is  discharged  by — 

1st.  Accord  and  satisfaction. 

2clly.  Arbitrament. 

odly.  Tender    of  amends    for    an  involuntary 

trespass. 
4thly    Former  recovery, 
othly.  Dis  less  for  the  same  cause. 
6thly.  Kele..se. 
^7ihly.  Statute  limitations}  Sec. 


< 


L3dly. 


<^ 


< 


OF  PLEAS  IN  BAR  IN  GENERAL.  -^^465 

♦From  these  divisions  we  may   perceive,  that  pleas  in  bar,   Genr-al  ob- 

,.  c  1  •        i-erv'-iiom. 

as  well  in  actions  on  contracts  as  lor  torts,  are  ot  two  descrip- 
tions :  first,  they  deny  that  the  plaintiff  cvi-r  had  the  cause  of 
action  complained  of:  or  secondly,  they  adinlc  that  he  07ice  had 
the  cause  of  action,  but  insist  that  it  jio  lo7iffer  exisls,  either  on 
account  of  his  having  become  an  alien  enemy,  an  outlaw,  a 
bankrupt,  insolvent  debtor,  kc.  or  in  respect  of  the  dc/cndcmt's 
beincj  protected  by  his  certificate  under  the  bankrupt  laws,  or 
by  bein-j  an  insolvent  debtor,  or  in  respect  of  the  cause  of  ac- 
tion having  been  discharged  or  satisfied. 

In  the  ancient  course  of  pleading,  there  appear  to  have  been 
three  descripdons  of  pleas  in  bar,  by  one  of  which  the  above  de- 
fences were  to  be  taken  advantage  of:  1st.  The  general  issue. 
2dly.  A  denial  o[  &  fiariicular  allegation  in  the  declaration.  And 
3dly.  A  special  plea  of  nctv  matter  not  ajifiarent  on  the  face  of 
the  declai-rtlion.  General  issues,  it  is  said,  were  framed  in 
words  calculated  to  deny  the  whole  of  the  facts  alleged  in  the 
dcclaration,(j)  and  are  proper  and  in  general  necessary  when 
the  defence  merely  denies  the  plain tift's  allegation,  and  refers 
the  matter  in  dispute  to  the  jury,  who  are  the  proper  judges, 
whether  or  not  the  fact  complained  of  was  committed. (X:)  In 
sssutiijisit  almost  every  matter  may  be  given  in  evidence  on  the 
general  issue  7ion  assumpsit,  on  the  ground,  it  is  said,  that  as 
the  action  is  founded  on  the  contract,  and  the  injury  is  the 
non-performance  of  it,  evidence  which  disaffirms  the  obligation 
©f  the  contract  at  the  time  ivhen  the  action  vjus  commenced,  goes 
to  the  gist  *of  the  action. (/)     In  debt  on   simple  coniract  also,  •*   4(5g 

under  a  plea  of  nil  debet,  the  defendant  was  at  liberty  to  prove 
most  matters  which  evinced  that  there  was  no  existing  debt  ;(;«) 
but  in  debt  or  covenant  founded  on  a  deed,  on  account  of  the 
solemnity  of  the  instrument  under  seal, («)  and  which  in  gene- 
ral must  be  dissolved  eo  liga?iiine  (juo  ligatur,  the  plea  of  7icn 
est  factum  merely  put  in  issue  the  existence  of  the  deed,  and 
the  defendant  was  not  at  liberty  to  plead  7iil  debet,  unless  where 
the  deed  was  mere  inducement  to  the  action,  and  the  debt  ac- 


(./)  Gill).  C.  v.  57.  63,  64.  (m)  Gilb.  C.  P.  58. 

{k)  Gilb.  C.  P.  0.5.  (,'i)  PlowH.  9»lt 

(0  Gilb.  C.  P.  C5.      Salk.  279.     S 
vSVia.  733.  1  B.  k  P.  481. 


466  OF  PLEAS  IN  BAR  IN  GENERAL. 


General  (Ji-  ciuccl  by  subsequent  enjoyment,  &c.(o)  Jn  case  or  trover,  uiv- 
der  the  general  issue  "  Jiot  guilty  of  the  premises"  almost  any 
matter  of  defence  might  be  given  in  evidence,  though  any  plea 
admitting  the  plaintiff's  property,  and  the  act  committed,  but 
justifying  it,  might  be  pleaded. (/z)  In  rejilevin,  the  general 
issue  non  cejiit  modo  et  forma.)  merely  puts  in  issue  the  act 
complained  of  as  stated  in  the  declaration.  In  (resfiass,  whether 
to  the  person,  personal  property,  or  real  property,  the  general 
issue  is  ?io(  guilty. {(j)  In  injuries  to  the  absolute  rights  of  per- 
sons, this  only  puts  in  issue  the  act  complained  of ;  but  in  in- 
juries to  the  relative  rights,  and  to  personal  and  real  property, 
it  puts  in  issue  the  existence  of  the  right  as  well  as  the  commis- 
siou  of  the  act  complained  of,  though  in  the  two  Ial,ter  cases, 
possession  will  be  sufficient  against  the  defendant,  unless  he 
can  shew  a  better  title. 

^   46  /  Formerly  it  was  not  unusual  even  in  actions  of  *assumfisil  for 

the  defendant  to  deny  a  /larticular  allegation  in  the  declaration, 
instead  of  pleading  the  general  issue,  which  denied  the 
whole  ;(?•)  and  it  is  said,  that  this  was  permitted  in  order  to 
bring  a  single  point  to  issue,  and  that  if  the  jury  gave  a  corrupt 
verdict,  they  naight  be  more  easily  attainted,  which  was  not  so 
i^adily  done  on  a  general  issue,  where  the  matter  was  more 
complicated  ;(*)  tlius  in  assumpsit  it  was  usual  to  traverse  in 
particular  the  consideration  of  the  contract,  &c.  or  the  contract 
ilself,  or  the  phiintiff's  performance  of  a  condition  precedent, 
Sec.  but  in  assumpsit  this  practice  is  now  obsolete.  In  debt  for 
rent  due  by  deed,  the  defendant  may  still  plead  non  est  factum, 
or  not'ning  in  arrcar ;  or  if  not  by  deed,  non  dimisit,  or  nothing 
in  arrcar  ;  though  these  points  might  be  given  in  evidence  un- 
der tlie  plea  of  nil  debet. (t^^ 

From  the  history  of  our  ancient  law,  it  appears  that  in  all 
personal  actions  the  defendant  was  at  liberty  to  shew  specially  to 
the  court  matters  of  defence,  not  merely  consisting  in  a  denial  of 
a  nuiterial  part  of  the  plaintiff's  declaration,  but  introductory  of 


(f/)  <;nij.C.  P.  57,  5S.  61,  frl  (s)   Gilb.  C.   P.  61.  139.  US. 

(/O  <;ilb.  C.  P.  64,  Co.  Leon.  66. 

(v)  (iilh.  C.  P.  .sr.  (0  Gilb.  C   P.  61,  6-3, 

(r1  Cilfi.  C.  P.  CO.  01.    Doct.  Plf.i;. 
20  J.' 


OF  PLEAS  IN  BAR  IX  GENERAL.  4(57 

neiu  mailer  nol  a/i/iartnl  therein  ;(?<)  such  as  coverture,  infancy,    Gc""^'al  ob. 

1-11  I     ,  if  •  ■■    .  .   .  ciTvatiom-. 

&c.  uiiich  though  they  are  in  eiiect  negations  ot  the  piaintiH   s 

declaration,  yet  being  mutters  of  law,  as  to  their  sufliciency  in 

defence,  were  considered  as  properly  refei-abie  to  the  courl  in 

the  first  instance, (-u)  though  if  iraverbcd,  tiie  existence  in  *faci         '^   468 

of  such  defence  Wiis  then  properly  to  be  tried  by  a  jury,(x) 

So  in  general  whatever  ground  of  defence  rendered  the  fact 
complained  of  lawful,  being  matter  of  juncijication^  was  to  be 
shewn  to  the  court,  as  a  license,  &,c.  because  the  court  are 
judges  what  is  the  law,  and  how  far  the  fact,  if  done,  was  lawiul, 
and  the  jury  are  only  to  find  the  existence  of  the  fact,  lormcr- 
ly  the  general  issue  was  seldom  pleaded,  except  when  the  party 
meant  wholly  to  deny  the  charge  alleged  against  him,  and 
when  he  meant  to  distinguish  away  or  palliate  the  charge,  it  was 
usual  to  set  forth  the  particular  facts  in  a  special  plea,  which 
was  originally  intended  to  appiise  the  court  and  the  adverse 
party  of  the  nature  and  circumstances  of  the  deience,  and  to 
keep  the  law  and  the  fact  distinct.  But  the  courts  have  of  late, 
in  some  instances,  and  the  legislature  in  many  more,  penuitted 
ihe  general  issue  to  be  pleaded,  and  have  allowed  special  mutter 
to  be  given  in  evidence  under  ii,  at  the  trial.  And  it  has  been 
observed,  that  though  it  should  seem  much  confusion  and  un- 
certainty would  follow  from  so  great  a  relaxation  of  the  strict- 
ness anciently  observed,  yet  that  experience  has  shewn  it  to  Le 
otherv.ise,  especially  with  the  aid  of  a  new  trial,  in  case  eiihef 
party  be  unfairly  surprised  by  the  other.(!/) 


•®H 


We  will  proceed  to  consider  the  present  practice  as  to  plead- 
ing the  general  issue  or  a  special  *plea  in  each  personal  action.  *  469 
And  ^r*^  the  several  pleas  in  personal  actions,  and  where  the 
general  issue  is  suflicient,  and  when  the  plea  must  be  special,  or 
maybe  either  general  or  special.  And  secondly^  the  qualities  and 
forms  of  the  different  pleas,  and  other  points  relating  thereto. 


()/)  (;ilb.  C.  p.  63.  06.  (.r)  Id.  iliiil. 

\v)  GHb.  C.  P.  62.  66.  Ltl.  Haym.         (  y)  .3  Bl.  Com.  SO.i,  306.    Sed  vide 
SS.  "  1  East,  '217.     Ld.  Raj  nv  S8. 

Vol.   I.  [  43   ] 


469  OF  PLEAS  IN  BAR  IN  ASSUMPSIT. 


/.  OF  THE  SEVERAL  PLEAS. 

Ill  Assumpsit,  'pj^g  general  issue  in  an  action  of  assumpsit — is  "  that  the 
"  defendant  did  not  undertake  or  promise  in  manner  and  form  an 
^^  the  plaintiff  hath  complained  agabist  him.,  and  of  this  the  de- 
"fendant  puts  himself  upon  the  country"  iSfcXz)  Considering 
the  language  of  this  plea,  it  might  perhaps  seem,  on  first  view, 
that  the  defendant  by  it  only  denies  the  fact  of  his  having  made 
the  promise  ;  as  however  the  definition  of  a  contract  not  under 
seal  is  "  an  agreement  founded  on  a  sufficient  and  legal  consi- 
"  deration,  to  do  some  legal  act,  or  to  omit  the  doing  an  act 
"  the  performance  of  which  the  law  does  not  enjoin,"  the 
above  plea,  by  denying  the  contract,  in  effect  puts  in  issue  every 
part  of  the  above  definition,  viz.  the  agreeme7it,  to  constitute 
which  the  defendant  must  have  been  in  a  situation  competent 
to  contract,  and  consequently  infancy,  coverture,  and  duress  or 
any  other  defence  shewing  either  an  incompetency  to  contract, 
or  that  the  defendant  had  not  the  free  exercise  of  his  will,  are 
properly  put  in  issue   by  this  plea  ;  it  is  obvious  also  that  the 

*    <«-/%  sufficiency  and  legalitij  of  the  consideration,  and  of  the  act  to  be 

done  or  *omitfed,  are  fairly  put  in  issue  by  this  plea  ;  but  the 
allegation  "  7ncdo  Isf  forma'"  does  not  put  in  issue  the  form  of 
the  count,  but  only  the  substance  of  the  promise,  for  which 
reason  the  plaintiff  may  give  in  evidence  a  contract  diiferent 
from  that  mentioned  in  the  declaration,  in  time  or  place  when 
immaterial,  though  not  a  contract  different  in  substance. (o) 

When  the  defendant  insists  that  no  such  contract  as  that  sta- 
ted in  the  declaration  was  in  fact  made,  he  must  plead  the  ge- 
neral issue,{b)  under  which  he  may  give  in  evidence  that  ano- 
ther person  ought  to  have  been  made  co-plaintiff  ;(c)  also  in- 
capacity to  contract ;  as  that  at  the  time  the  supposed  contract 
was  entered  into,  the  defendant  was  an  infant,(rf)  a  lunatic, (f) 


(z)  See  the  precedents,  post,  vol.  {d)  1  B.   &t  T'.  481.  n.  a.     1  Salk. 

2.  42;5.    Com.  Dig.  Pleader,  G.  1.  Not  279. 

p;uilty  is  bad  on  demurrer,  but  is  aided  (e)  2  Stra.  1104.  2  Bl.  Com.  292.    1 

ty  verdict.     Stra.  1022.  p'onbl.  46,  ir.  n.b. 49.  n.  9.  ace.  Fonbl. 

(a)  Gilb.  C.  P.  51.     Co.  Lit.  282.  b.  45  to  72.     Co.  Lit.  2.  b.  n.  12.  247.  a. 

(i^)  Com.  Dig.  Pleader,  2.  G.  b.    Powell  on  Contracts,  20.  23.  Bac 

(c)  Ante,  7.  n.  (^).  Abr.  Idiots,  F.  contr. 


OF  PLEAS  IN  BAR  IN  ASSUMPSIT 


470 


or  drunk,(/)  or  ■s^feme  covert ;  but  coverture  which  has  taken  jn  Ammpsit. 
place  since  the  making  of  the  contract,  must  be  pleaded  in 
abatement,(  g)  so  the  defendant  may  give  in  evidence  that  he 
was  under  duress  ;(A)  and  the  want  of  sufficient  or  legal  con- 
sideration for  the  contract,  or  illegality  in  the  contract  itself, 
may  be  given  in  evidence  under  this  plea  ;  as  gaming,(z)  usu- 
ry,(7)  8cc.  or  that  the  plaintift'  was  an  alien  enemy. (/^r)  or  that 
the  contract  was  void  *by  the  statute  against  frauds. (/)     So  a  ■*•   471 

release  or  parol  discharge  before  breach, (/w)  or  an  alteration  in 
the  terms  of  the  contract,(n)  or  non-performance  by  the  plain- 
tiff of  a  condition  precedent,  or  that  the  contract  was  perform- 
ed by  payment,  8cc.(o)  or  that  it  afterwards  became  illegal  or 
impossible  to  perform,  may,  when  they  constitute  a  sufficient 
defence,  be  given  in  evidence  under  this  plea.(//) 

These  defences  shew  that  the  plaintiff  yievet-  had  any  cause 
of  action.  Formerly  matters  in  discharge,  which  admit  that 
once  there  was  cause  of  action,  must  uniformly  have  been 
pleaded  specially  jCy)  afterwards  a  distinction  v/as  made  be- 
tween express  and  implied  assumfidts  :  in  the  former,  these 
matters  were  required  to  be  pleaded,  but  not  in  the  latter  ;(r) 
at  length,  however,  they  were  allowed  to  be  given  in  evidence 
under  the  genei'al  issue  ;(*)  therefore,  under  the  plea  of  non 
assu77i/isity  the  defendant  may  give  in  evidence  that  the  plaintiff 
is  a  bankrupt ;(()  or  where  a  feme  covert  suing  alone  has  no  in* 
terest  in  the  contract,  her  coverture  ;  but  not  that  the  plaintiff 


(/)  2 Stra.  1104.     Bull.  N.  P.  172. 

( J-)  III.  ibid.  '2  Keb.  2'2S.  12  Mod. 
101.     3  T.  R.  627.    Ante,  4,'i7. 

(A)  5  Co.  119.     1  Sauiul.  10:3.  a. 

li)  1  Ld.  Kaym.  87.  1  Salk.  344. 
Canh.  350.  5  Mod.  170.  12  Mod. 
67.     Com.  D!-  Pleader,  2.  G.  8. 

(.;■)  1  Sti-a.  49S.  Com.  Dig.  Plead- 
er, 2.  G.  7. 

{k)  Doug.  649.  n.  132.  5  T.  R.  24. 
4  East,  407.  410. 

(/)  29  Car.  II.  c.  3. 

Im)  Com.  Dig.  Pleader,  2.  G.  5<c. 
and  tit.  Action  Assumpsit,  G 

(Ji)  8  T.  R.  280.  * 


(o)  Ld.  Raym.  217.  566.  12  Mod. 
376.  1  Salk."  394.  Cora.  Dig.  Plead- 
er, 2.  G.  10.  15. 

(_/))  S  T.  R.  263.  Co.  Lit.  206.  s. 
1  H.  Bl.  65. 

(5)  6  Ld.  Raym.  566.  12  Mod. 
376.    Tidd's  Prac.  4tli  edit.  5SS.  n.  n. 

(r)  Vi\i.  Abr.  Evideuce,  z.  a.  1 
Salk.  2S0.     Gi!b.  C.  P.  65. 

(.s)  I  Ld.  Raym.  217.  565.  12  Mod. 
376.      " 

(0  7  T.  R.  3D5.     Bull.  "N  P.  15  J, 

I  n.  &  P.  44s 


471  OF  PLEAS  IN  BAR  IN  ASSUMPSIT. 

LiMsumpsit.  is  co-vert  where  she  would  have   a  right » to  join  in  the  action^ 
which  in  such  case,  must  in  general  be  pleaded  in  abatementAw) 

*  472  *So  also  payment  ;(x')  accord  and  satisfaction  ;(7y)  a  promis- 

sory note,  or  other  negotiable  secuiity  given  for  the  debt,  and 
remaining  in  the  hands  of  a  third  person,  or  otlierwise  outstand- 
ing ;(:r)  foreign  attachment ;(;/)  arbitrament  ;(2)  former  reco- 
very for  the  same  cause  ;(a)  a  higher  security  given  ;(6)  and  a 
release  ;(c)  may  be  given  in  evidence  under  the  plea  of  non 

Hence  it  may  be  collected,  that  under  the  general  issue,  any 
matter  which  shews  that  the  piainiiff  never  had  cause  of  action, 
may  be  given  in  evidence,  and  also  that  under  that  plea  most 
ifriatters  in  discharge  of  the  action,  which  shew  that  at  the  time 
of  the  commencement  of  the  suit  the  plaintiff  liad  no  subsist- 
ing cause  of  action,  may  be  tjken  advantage  of.  As  the  ob- 
ject of  pleading  is  to  apprize  the  adverse  party  of  the  ground 
of  defence,  in  order  that  he  may  be  prepared  to  contest  it,  and 
may  not  be  taken  by  surprise  :(f/)  it  may  appear  singular,  that 
under  the  general  issue,  which  in  terms  only  denies  a  valid  con- 
tract, the  defendant  should  be  permitted  to  avail  himself  of  a 
ground  of  defence  which  admits  a  valid  contract,  but  insists 
that  it  has  been  performed,  or  that  there  is  an  excuse  for  the 
non-perlbrmance  of  it,  or  that  it  has  been  discharged  ;  it  is,  as 

*  473         observed  by  Lord  HoU^  a  practice  which  has  *crept  in  impro- 

perly, but  is  now  perhaps  too  settled  to  be  altered. (f)  It  has 
been  attempted  to  be  justified  on  the  ground  that  the  gist  of 
the  action  is  the  fraud  of  the  defendant  in  not  performing  the 
contract,  and  that,  therefore,  whatever  shews  there  is  no  fraud, 
is  properly  in  issue  under  the  plea  of  7ion  assumpsit ;  but  this 


(«)    4   T.  R.    364.     3  T.   R.  (}27.  (c)  1  L<1.  Rayra.  1022.     Bac.  Abr. 

Ante,  \?t7.  Arbitrament,  G. 

(rO  L(1.  Rnym.  217.  (n)   -  Su-i<.  '33.     1  Snund,  92.  n.  2, 

(if)  1  Ld.  liaym.  566.  12  ^fo.l.  S76.  {b)  3  East,  25S.     Com.  Dig.  Plead- 

5  East,   230.     4  Esp.  Cas.  X.  P.  181.  er,  2.  G.  12.    Ante,  96. 

Bac.  Abr.  tit.  Accoid.  Com.  Dig.  tit.  (c)  3  Esp.  Rep.   234.     Dong.   106. 

Accord.  Cilb.  C.  P.  64. 

(a)  5  T.  R.  513.     Rail.  N.  P.  1.S2.  (,/)  Ante,  215. 

Q/)  1  Sa!k.  2S0.      I  Saimd.  67.  a.  n.  ((>),ia2  Mod.  377.      1^.  Raym,  SIT. 

3  East,    307.  378.     2   Vcs.  jun.   106.  506. 
Com.  Dig.  Attachment,  A.    aad  tit. 
Pleader,  2.  G.  5, 


OF  PLEAS  IN  BAR  IN  ASSUMPSIT.  473 

^oes  not  uppear  to  accord  with  the    logical   precision  which  In  AssumpcHi. 
usually  pre\aiis  in  ple:iding-.(/) 

'1  here  are,  however,  some  defences  which  either  must  or 
should  be  pleaded  specially  ;  thus  though  we  have  seen  that 
under  the  general  issue  it  may  be  given  in  evidence,  that  at 
the  time  the  contract  w'as  made,  the  plaintiff  was  an  alien  ene- 
my :{g)  yet  if  the  disability  accrued  by  war  after  the  contract 
was  made,  the  same  should  be  pleaded  specially. (A)  So  out- 
lawry of  the  plaintiff  nmst  be  pleaded  in  abatement,  if  tho 
cause  of  action  be  not  forfeited, (?)  and  the  defendant  must 
plead  that  he  is  a  certificated  bankrupt,(^')  or  a  discharged  in- 
solvent debtor. (X)  So  a  tender,{/)  a  set-off,(w)  and  the  statute 
of  limitatiofis,(?0  cannot  be  given  in  evidence  under  the  gene- 
ral issue,  though  in  an  action  of  assumimU  unless  *the  subject  ^  474 
matter  of  set-off  accrued  by  reason  of  a  penalty  contained  in  a 
bond,  or  specialty,   the  defendant  has  the  option  of  pleading  * 

©r  givhig  notice  of  set-off.(o)  With  respect  to  the  defences 
under  the  courts  of  conscience  acts,  some  must  be  pleaded  ; 
others  may  either  be  pleaded  or  given  in  evidence  under  the 
general  issue  ;  and  others  must  be  taken  advantage  of  by  en- 
tering a  suggestion  wliich  may  be  traversed  or  demurred 
to.(/?) 

The  defendant  is  at  liberty  to  plead  any  matter  which  does 
rtot  amount  to  the  general  issue,  and  which  admits  that  in  fact 
a  contract  was  made,  but  insists  that  it  was  void  or  voidable 
either  on  account  of  the  defendant's  infancy,(5')  lunacy,    cover- 


(/)  Gilb.  C.   P.   65.     3  V,\.  Com.  (/)   See   the   precedent,  post,  vol 

305,306.     Ante,  465,  406.  468.  2.431.     1  Saund.  33.  n.  2. 

(^')  Ante,  470.  (m)  Sec  tlie  precedents,  post,  vol. 

{h)  See  the  precedent,  post,  vol.  2.  2.  440  to  448.      2  Geo.  II.  c.  22.  s.  Ift 

+25,  4-26.     8  T.  R.  166.      6  T.  R.  24.  8  Geo.  II.  c.  24. 

1  B.  &  P.  222.     2  B.  &  P.  72.      2  BI.  {ii)  See  the  precedents,  post,   vok 

Rep.  1326.     4E!»st,  504.  &c.  2.449,450.      1  Saund.  2S3.  n.  2.      S 

0)  Com.  Dig.  Pleader,  2.  G.  4.  Saund.  63.  b.  c.    1  Selwjn,  N.  P.  120, 

(./)  See  the  precedents,  post,  vol.  note  74. 

2.426.      5  Geo.  II.  c.  30.  s.  7.     4  T.  (o)  Montagu's  Law  of  Set-ofi",  iO  fs 

R.  156.      1   P.  Wms.   258,    259.     10  47. 

Mod.  160.247.     1  B.  k  P.  467.     3  B.  {p)  See  the  precedent,  post,  vol. 

&P.  171.     6T.  R.  496.                    ,  2.  44S.     Tidd's  Prac.   4th   edit.  859, 

{h)  See  tlie   precedent,  post,  vol.  860.     3  T.  R.  452. 

l.  430.    Com  Dig.  Pleader,  2.  <i.  16.  (7)    See  the  precedent,  pet,  vol- 

2.  424. 


474  OF  PLEAS  IN  BAR  IN  ASSUMPSIT. 

Jly  Jlmimpsit.  ture.(r)  duress,  See.  or,  that  the  plaintiff  was  an  alien  enemy 
at  the  time  the  contract  was  made  ;(«)  or  for  want  of  sufficient 
consideration  ;  or  on  account  of  illegality  therein,  or  in  the 
act  to  be  done  ;  as  usury,  gaming,  &c.  or  because  the  contract 
was  void  under  the  statute  against  frauds. (0  So  a  release  be- 
fore breach,(u)  and  performance(-y)  or  payment(w)  may  be 
pleaded  ;  though  we  have  seen  that  all  these  matters  may  be 
given  in  evidence  under  the  general  issue.  So  all  matters  in 
discharge  of  the  action  may  be  pleaded  specially.  If  the  plain- 
tiff's bankruptcy,  which   we  have  seen  may  be  given  in  evi- 

*  475  dence  under  the   general  issue,  be  pleaded  *specially,  all  the 

circumstances  shewing  the  sufficiency  of  the  proceedings  un- 
der the  bankruptcy  must  be  stated  in  the  plea.(jr)  Accord 
and  satisfaction, ((/)  foreign  attachment,  release,(z)  arbitra- 
ment,(«)  former  rccovery,(6)  or  that  a  negotiable  or  higher 
security  was  given  for  the  debt,(f)  are  seldom  pleaded  unless 
for  the  purpose  of  delay,  but  it  is  usual  to  plead  coverture ; 
and  it  is  in  general  advisable  to  plead  infancy  specially,  be- 
cause the  plaintiff  will  thereby  be  compelled  to  reply  only  one 
of  several  answers  which  he  might  have  to  the  defence,  viz. 
either  that  the  defendant  was  of  age,  or  that  the  goods,  kc. 
were  necessaries,  or  that  he  confirmed  the  contract  when  he 
came  of  age  ;  on  cither  of  which  the  plaintiff  at  his  election 
might  rely  at  the  trial  in  answer  to  the  defence  of  infancy,  if 
the  general  issue  alone  were  pleaded.  So  it  is  often  more  ad- 
visable to  plead  a  set-off  than  to  give  notice  of  it,  for  if  plead- 
ed the  plaintiff  cannot  reply  double,  but  must  rely  on  one  an- 
swer alone,  and  in  a  country  cause  by  pleading  it,  the  trouble 
and    expense  of  proving  the  service  of  the  notice    may   be 


(r)  See    the  precedent,  post^  vol.  (v)  Sec  the  precetlent,    post,  vol. 

2.  4'25.  2.  434. 

(s)  Doug.  649.  (z)   Com.   Disj.  Pleader,    2.  G.  14. 

(?)  1  AVils.  305.  Post,  vol.  2.  439. 

(i<)  Com.  Dig.  Pleader,  2.  G.  13,  («)  See   the   precedent,  post,  vol- 

14.  2.  436. 

(ti)  Com.  Di;^.  Pleader,  2.  G.  15.  (6)  See   the  precedent,  post,  vol. 

\^u)  1  Sulk.  394.       Ld.Raym.  787.  2.  438. 

Com.  Dig.  Pleader,  2.  G.  10.  .(c)  See  the  precedents,  post,  vol. 

(x)    1  Ld.  Uayra.    217.     566.      12  2.  434,  435,  436. 
Mod.  376.      1  li.'Si  P.  448.      7  T.  li. 
3fl6. 


OF  PLEAS  IN  BAR  IN  DEBT.  475 

saved.     Indeed  the  principal  use  of  a  special  plea,  is  that  in  Jn  Assumimt. 
general  it  narrows  the  evidence  to  be  adduced  on  the  trial. 

The  action  of  debt  wc  have  seen  is,  1st.  On  simple  con-  /«  D^bt. 
tracts  and  legal  liabilities  ;  2dly.  On  specialties  ;  3dly.  On  re- 
cords ;  and  4thly.  On  statutes. 

*In  del)t  on  simjile  contract  or  legal  liabilities,  as  for  an  es-  *  476 
cape,  Scc.(<i)  the  general  issue  is  nil  debet ;  "  that  the  dcfend- 
«'  ant  doth  not  owe  the  said  sum  above  demanded,  or  any  /lart 
"  thereof,  in  tiianner  and  form  as  the  ^ilaintiff  hath  above  com- 
'•  Jdained  against  him  "(c)  or  in  the  case  of  executors  or  ad- 
ministrators "  doth  not  detain,"  and  if  non  assumpsit  be  plead- 
ed, the  plaintiff  may  sign  judgment.(/)  The  language  of 
this  plea  puts  in  issue  the  existence  of  the  debt  at  the  time  of 
bringing  the  action,  and  consequently  any  matter  may  be  given 
in  evidence  under  this  plea,  ^hich  shews  that  nothing  was  due 
at  that  time,  as  performance  or  a  release,  or  other  matter  in 
discharge  of  the  action.(^)  It  has  even  been  held  that  as  the 
plea  of  77il  debet  is  in  the  present  tense,  the  statute  of  limita- 
tions may  be  given  in  evidence  under  the  general  issue  ;(/i) 
but  this  doctrine  seems  questionable,  and  the  practice  is  to 
plead  the  statute  in  debt  as  well  as  assiim/isil,{i)  and  a  tender 
must  be  pleaded  specially  •,(j)  and  a  set-off  iiiust,  as  in  as- 
sian/isit,  be  either  pleaded  or  notice  thereof  given. 

In  debt  on  a  s/iecialty  there  is  a  material  distinction  *between  ^-  ^.y-^ 
those  cases  in  which  the  deed  is  only  inducement  to  the  action 
and  matter  of  fact  the  foundation  of  it,  and  those  in  which  the 
deed  itself  is  the  foundation,  and  the  fact  merely  inducement. 
In  the  former  case,  as  in  debt  for  rent  due  on  an  indenture  of 
lease,  though  the  plaintiff  has  declared  setting  out  the  inden- 


(d)  Salk.  565.     I  Saund.  38.  2il  edit.  271.     Mr.  J.  Lavrenct's  opi- 

(e)  See  the    precedent,  post,  vol.  nion  in   2  East,  336.  has  been   consi- 
2.  459.  dered   as  supporting    the   decisiou  in 

(_/)  6  East,  549.  Bac.  Abr.  Pleas,  I.  1  Ld.  Rajm.  153.  but  note,  his  obser- 

(j)  Cora.  Dig.  Pleader,  t>.  W.  16.  vation   applied  only  to  penal  actions, 

1  Ld.  Raym.  566.  .394.      12  Mod.  376.  in  which  the  statute  may  be  given  in 

mcr.  Gilb.  Debt,  454.  443.  semb.  contr.  evidence  under     the    general   issu^" 

(/i)  1  Salk.  278.     1  Ld.  Raym.  153.  2  Saund.  63.  b.  c.  n.  6.     See  the  pre ce- 

1  Saund.  283.  n.  2.     Com.  Dig.  Plead-  dcjit,  post,  vol.2.  471. 
er,  2.  W.  16.     2  Saund.  63.  a.  (./)    See  the  precedent,  post,  vol 

(0  1  Saund.   283.    n.  2.      2  Saund.  2.  4G9. 
63.  n.  6.      Puake's  Law  of  Evidence, 


■*-  478 


477  OF  PLEAS  IN  BAR  IN  DEBT. 

In  Debt.  tiire,  yet  as  the  fact  of  the  subsecjuent  occupation  gives  the 

right  to  the  sum  demanded,  and  is  the  inundation  of  the  action, 
and  the  lease  is  mere  inducement,  the  defendant  may  plead  nil 
debet  :{k)  and  for  the  same  reason  this  plea  is  pi'oper  in  debt 
for  an  escape, (/)  or  on  a  devastavit  against  an  executor  :(wO 
the  judgment  in  these  actions  being  merely  inducement,  and 
the  escape  or  devastavit  the  foundation  of  the  action. (w)  The 
plea  of  nil  debet  in  these  cases  puts  the  plaintifT  on  proof  of  the 
\vhole  of  the  allegations  in  the  declaration,  and  under  it  he  may 
give  in  evidence  an  eviction. (o)  payment,  or  a  release,  See.  as 
on  a  plea  of  nil  debet  to  debt  on  simple  contract  ;  but  in  debt 
for  rent  on  an  indenture  of  lease,  the  defendant  cannot,  under 
the  plea  of  nil  debet,  give  in  evidence  that  the  plaintiff  had  no 
estate  in  the  tenements  ;  because  if  he  had  pleaded  that  spe- 
cially, the  plaintiff  might  have  replied  the  indenture,  and  estop- 
ped him.(/0  In  debt  for  rent  on  a  parol  lease,  non  dimisit  may 
be  pleaded,((7)  but  not  in  debt  for  rent  on  an  indenture. (?)  *And 
rien  en  arjcre,  it  is  said,  is  not  a  suflRcient  plea,  without  con- 
cluding and  issent  nil  debet ;(«)  and  it  is  optional  in  the  defend- 
ant either  to  /dead  an  eviction,  or  to  give  it  in  evidence  upon  Jii' 
debet,  though  in  covenant  he  must  plead  it.vO 

When  the  deed  is  the  foundation  of  the  action,  although  ex- 
tnnsic  facts  are  mixed  with  it,  the  defendant  must  plead  non 
est  factum^  and  nil  debet  is  not  a  sufficient  plea  :(w)  as  in  debt  for 
a  penalty  on  articles  of  agreement,(t^)  or  on  a  bail-bond,(w)  or 
on  a  bond  setting  out  the  condition  and  breach. (x)  And  if  in 
ihese  cases  nil  debet  be  pleaded,  the  plahuiff  should  demur,  for 


(A )   Gilb.    C.    P.   6t2.      L(l.   Eaym.  (?•)  Id.  436. 

1500.     I  New   ReT>.  104.     I    S.niind.  (s)  Id.  440.  cites  Bro.  tit.  Debt,  113. 

276.  n.  1.  2.  202.  211.     2  Saund.  29'.  Keilw.  153.     But  see  Cowp.  5SS.  and 

n.  1.  the  precedent,  post,  vol.  2.  486 

(?)  2  Sa!k.  555.     1   Saund.  38,  n.  3.  (/)  I  Saund.  204.  n.  2.    See  thepre-^ 

{m)  1  Saund.  219.     Carth.  2.  cedent,  i)0.st,  vol.  2.  486. 

(h)  Id.  ibid.    Cora.  Dig.  Pleader,  2.  {%i)  1  Saund.   38.   n.    3.     2   Saund. 

W.  16.    .3  Saund.  344.  n.  2.    1  Saund.  18".  a.    2  Ld.  Raym.  1500.     The  in. 

SIS.  n.  4.  2!9.  n.  7.  stance  of  debt  for  rent  seems  to  be  an 

(o)  1  Sauud.  204.  n.  2.  exception. 

(/))  1  Salk.277.  8  T.  R.  487.  From  (r)  Id.  ibid.     2Ld.  Raym.  1500.     2 

the  case  in  5  T.   R.  4.    2  Wils.  208.  Stra.  778.     1    Barnard.   K.    B.  15.     8- 

213.  it  appears   that  the  tenant  is  es-  Mod.  106.  323.382. 

topped    from    di.sputing     the     title,  (w)  Id.  ibid.     Fortes.  363.  367.     ^ 

though  the  demise  was  by  pai'ol.  Saund.  187.  a. 

(7)  Gilb.  Debt,  438.  (x)  2  Saund.  187.  a,  a.  S. 


OF  PLEAS  IN  BAR  IN  DEBT.  478 

if  he  do  not,  he  will  have  to  prove  every  allegation  in  his  dechi-  In  Debt. 
ration,  and  the  defendant  will  be  at  liberty  to  avail  himself  of  any 
ground  of  defence  which  in  general  may  be  taken  advantage  of 
under  the  latter  plea.Ci/) 

In  debt  on  bond  or  other  s/iecialtijf  wlien  the  deed  is  the  foun- 
dation of  the  action,  the  pica  o'i  non  cut  factum  is  proper,  either 
when  the  plaintiff's  firofert  cannot  be  proved  as  stated, (z)  or 
the  deed  was  not  executed  or  not  duly  stamped, (a)  or  varies 
from  the  declaration, (<!')  but  he  must  plead  in  abatement  that 
another  co-obligor  *ought  to  be  joined, (c/)  And  the  defendant  *  479 
may  give  in  evidence  under  the  plea  of  non  eat  factum^  that  the 
deed  was  deliver^l  to  a  third  person  as  an  escrow.,  (though  it 
is  more  usual  to  plead  the  fact,)(<°)  or  that  it  was  void  at  com- 
mon law  ab  initio  ;(/")  as  that  it  was  obtained  by  fraud, (,§•)  or 
made  by  a  married  ivoman.,{^h)  or  a  lunatic,  Scc.O)  or  that  it  be- 
came void  after  it  was  made,  and  before  the  commencement  of 
the  action, (y)  by  erasure,  alteration,  addition,  Scc.C^)  But  mat- 
ter which  shews  that  the  deed  was  merely  voidahlcQ)  on  account 
of  infancy(7?i)  or  duress, (n)  or  that  it  was  -void  by  act  of  par  Ha- 
mcnt{o)  in  respect  of  usury,(/2)  gaming,  &.c.(7)  or  that  a  bail- 
bond  was  not  made  according  to  the  23  Htn.  VI.  c.  9.  must  in 
general  be  pleaded  ;  in  the  case  of  a  bail-bond  indeed,  if  it  ap- 


(^)  5  Esp.  Rep.  38.     2  Saund.  18".         (_/)  5   Co.    119.   b.   ace.     S;iv.    71. 


a.  n.  2. 


semb.  contr. 


(r)  4  East,  5S5.     Com.  Dig.  Plead-  (^-)  5  Co.   23.   119.  b.     Bull.  X.  P. 

er,  2W.  18.  172.     Co.  Lit.  35.  b.  n.  6,7.225.1' 

(,0  6T.  R.  317.  11  Co.  27,  2S. 

(6)  Com.  Dig.   Pleader,   2   W.   IS.  (/)  5  Co.  119.  a.     Gilb.  Debt,  437. 

2  Stra.  1104.  2  Salk,  675.     1  Ld.  Raym.  315. 

((/)  Ante,  29.    Co.  Lit.  283.  a.  ('«)    1    Salk.  279.      3    Burr.    1805. 

{e)  See  the  pj^ecedent,  r)0^t,  yo\.  2.  1794.     2  lust.  483.     Post,  vol.  2.  460. 

452.     4Esp.  Rep.   255.     6  Mod.  217.  (?0  5  Co.  119.   a.  2  Inst.   482,483. 

1  Sid.  450.     1  Salk.  274.   2  Roll.  .\l!i-.  Com.  Dig.  Pleader,  2  W.  J  9,  20.  Lac. 

f)S3.      T.   Raym.     197.      Com.  Dig.  Abr.    Pleader,   G.   3.   tit.  Duress,  D. 

Pleader,  2  \v'  18.  4  East,  94.  Bull.  N.  P.  171.  9  Vin.  322.  2  Saiind. 

(/)5Co.  119.    2Wiis.  341.  3i7.  155.  ii.  4.     Post,  vol.  2.  404. 

l^)  See  the  precedent,  post,  vol.  2."  (o)  5  Co.  119.  a.     2  Saund.    155.   a- 

464.  n.  4. 

{h)  Com.  Dig.  Pleader,  2  W.  18.  {p)  1  Str.-j.  4nS.     Com.  Dig.  Plead- 

12  Mod.  101.     2  Kcb.    2:8.     2   Stra.  er,  2  W.  23.    Post,  vol.  2.  4.67. 

1104.  (?)  Cora.  Dig.  Pleader,  2  W.  26. 

(/■)  Slra.  1 104.     2  Salk.  675.     4  Co. 
123.     Ld.  Raym.  315.  Ante. 

Vol.  I.  [  44  ] 


479  OF  PLEAS  IN  BAR  IN  DEBT, 

In  Debt.  pear  upon  the  face  of  tlie  dcclartition  that  the  bond  has  beetv 

made  contrary  to  the   provisions  of  the  statute,  the  defendant 

*    430  may  demur  or  move  in  arrest  of  judgment  *after  verdict  upon 

a  plea  of  non  e&t.  factum  ;(r)  but  a  specialty  cannot  in  general 
be  avoided  by  usury  Sec.  appearing  merely  in  evidence,  or  on 
the  fa(  e  of  the  condiiion,  but  the  facts  must  be  pleaded  specially, 
and  the  defendant  cannot  demur. (s)  The  defendant  must  also 
plead  specially  payment  of  a  bond,  kc.  either  on  or  afier(0  the 
day,  and  wheie  no  interest  has  been  paid  on  the  bond  after  the 
time  mentioned  in  the  condiiion,  and  there  is  no  other  circum- 
stance to  netj;ative  the  presumption  of  payment  on  that  day,  ari- 
sing-  from  twenty  years  having  elapsed,  then  the  plea  may  be 
solvit  ad  diem,  but  otherwise  it  should  be  solvit  post  ditm.{u) 
So  performance,  or  any  matter  in  excuse  of  it,  as  non  damniji' 
catu.'i  to  a  bond  of  indemnity  ;(t')  no  award  to  an  arbitration- 
bond,  or  to  a  bail-bond,  no  process  to  arrest  the  defendanti 
Scc.Cw)  and  matters  in  discharge  of  the  action,  as  a  tender,  set- 
olf,(x)  accord  and  satisfaction,  former  recovery,  release,  and  fo- 
reign attatchment,(r)  must  be  pleaded  in  this  action. 

In  del)t  or  scire  facias  on  a  record,  when  the  record  is  the 
foundation  of  the  action  and  not  merely  inducement,  the  plea 
of  nil  debet  is  insuRicient,(fl)   and   nul  tiel  record  is  the  proper 

^  481  plea  where  *tbere  is  either  no  record,  or  where  there  is  a  va- 
riance in  the  statement  of  it  ;(6)  but  as  this  plea  merely  puts 
ill  issue  the  existence  of  the  record  as  stated,  any  matter  in 
discharge  must  be  pleaded,  such  as  payment,  which  is  given 
by  the  4th  .'hin.  c.  16.  and  accord  and  satisfaction  is  not  a  suf- 
ficient plea;(cl  and  as  it  is   a  maxim  in  law,  that  there  can  be 


(r)  I   Sauud.    I6l.n.   1.     -2.   T.    R.  iTioncy   bond,  8cc.    See  7  East,    150. 

569.     *  Sauiul.  60.  n.  3.  Com.  Dig.  Accord  and  Satisfaction.: 

(s)  1  Saund.  295.  b.  (;)  1  Sauiul.    67.   1.   a.  n.   1.     Co. 

(0  4  Ann.  c.  16.     Post,  vol.  2.  474.  |:nt.  139.   b.   142.  a.     Lib.  Plac.  IGO. 

(v/)    1  Stra.   653.     And   see  Rep.  pi.  11.3.     2  Lib.  Intrat.  164.     2  Show, 

temp.  Hardw.    133.  as  to  these  pleas  374.     3  East,  378. 
in  ge-.iei-al.  (a)  xVnte,  47S.    2    Saiind.   344.     1 

(t>)  1  B.  k  P.  640.  n.  a.  Post,  vol.  2.  Saund.  21.     1  East,  372. 
480,  4Sl.  {h)  Com.  Dig.  Pleader,  2  W.  13.  & 

(w)  Say.  116.  tit.    Record,    C.  Stra.  1171.    1  Saund. 

(x)  8  Geo.  II.  c.  24.    s.  5.    Bull.  N.  'J2.  n.  3.  Gilb.  Debt,  444.     3  Mod.  41. 
P.  179.     Willes,  202,  2:3.  (c)  3  East,  251.     7  East,  150. 

{y)  This  is  iw  plea  to  debt  on  a 


OF  PLEAS  IN  BAR  IN  DEBT.  481 

rw)  averment  in  pleading  against  the  validity  of  a  record,  though  In  Debt. 
there  may  be  against  its  operation,  thereiore  no  niaticr  oi  de- 
fence can  be  pleaded  which  existed  anicrior  to  the  recovery  of 
the  judgnient^c/,  but  the  dct'ciidani  may  plead  a  release, (c)  or 
that  tlie  debt  was  levied  by  a  Ji  fa.{f)  or  elcgii/^.^)  or  ca.  .',a.{h) 
An  executor  may  plead  filcne  adminisitvaxnt s{i)  or  to  debt  on  a 
judgment  suggesting  a  divusiavit^  he  nuiy  plead  not  guilty, (y) 
and  a  discharge  under  the  lords'  act,  is  an  efieciual  bar  to  an 
action  of  debt  on  a  judgment. (X-)  The  pleadings  in  debt  or 
scire  facias  on  a  recognisance  of  bail  have  already  been  suf- 
ficiently pointed  out.(/) 

In  debt  upon  ulatutc,  nil  debet,  is  the  proper  plea,  though  not 
guilty  would  in  some  cases  suffice. (?«)  The  statute  of  iimi'.u- 
tions  may  in   *such    action    be    given  in  evidence  u:ider    the  *•   482 

general  issue  ;(w)but  a  former  recovery  by  another  person  can- 
not.(o) 

In  COVENANT  there  is  strictly  no  general  issue,  for  the  plea  In  Cove:iani. 
©f  non  est  factum^  only  puts  the  deed  in  issue  as  in  debt  on  a  spe- 
eialty,(  }i)  and  not  the  breach  of  covenant  or  any  other  matter 
of  defence  ;  and  the  plea  of  noji  infregit  conventionem  is  bud  on 
demurrer,  though  it  would  be  aided  after  verdict,(9)  and  rien 
in  arrere  is  also  a  bad  plea  in  this  action.(r)  The  defendant.must 
therefore  plead  specially  every  matter  which  it  would  be  neces- 
-sarv  to  plead  in  debt  on  a  bond  or  other  specialty, (.v)  as  that  the 
deed  was  voidable  by  infancy,  or  illegality  of  the  consideration  ; 
however,  under  the  plea  of  «'>?j  est  factum^  the  defendant  may  on 
the  trial  avail  himself  of  a  variance  in  the  statement  of  the  deed,(/) 
and  if  the  plaintiff  omit  to  state  a  condition  precedent,  the  de- 
fendant may  crave  oj/cr,  and  set  out  the  deed  and  demur.(?0  In  an 

{(V)  -\nte,  354.  Com.  Dip:.   Pleafler,  2  S.  It.  \7.     See 

(e)  Bac.  Abr.  tit.  Release.  the  precedent,  post,  vol.  2.  4j9. 

(■/)  4  Leon.  194.     Sav.  123.     Cro.  (h)  -2  Samul.  63.  b.     2  Fkst,  33fi. 

Car.  328.     Clift.  075.  (o)  I  Stra.  "01.     Cac.  .\br.  Action 

(^)  Uyer,  299.  b.     1  Lev.  92.  cjui  tarn,  U.    See  the  precedents,  post, 

(A)  Oir.  Biev.  300.     1    Salk.  271.  vol.  2.  491. 

Lutw.  641.  (/»)  Ante,  478,  479. 

(0   I   L(l.  Raym.   3.     4  Mod.  296.  (7)8  T.  R.   278.     1    Lrr.   183.     ,S 

J5alk.  296.     Skin.  565.     3  East,  2.  Lev.    19.      1    Sid.   289.      Com.    lYig. 

(./)  1  T.  R.46-'.  1021,  1022.  PlcaHer,  2  V.  5. 

(h)  32  Ceo.  IL  c.  28.  s.  20.  (c)  Cowp.  5SS.     Post,  vol.   2.  486. 

(/)    Tidd's  Prac.  3d  edit.  1044.  4th  (.s)  Cora.  Dig.   Pleader,  2  V.  4.  kc. 

edit.  1021,  1022.  (/)  9  East,  188.     Stra.  1146. 

\m)  I  T.  U.  462.  Bac.  Abr.  Pleas,  L  (u)  Com.  Dig.    Pleader,  2  V.  S,  4; 


482 


OF  PLEAS  IN  BAR  IN  COVENANT. 


Jn  Curcnant.  action  of  covenant  upon  a  lease,  for  the  Ureach  of  a  covenant 
running  Avith  the  Jand,  if  the  plaintiff  claim  as  heir,  devisee, 
or  assignee,  Sec.  of  the  lessor,  the  defendant  may  traverse  the 
derivative  title  of  the  plaintiff,  or  admitting  that  the  lessor  had 
some  legal  estate  in  the  premises  at  the  time  of  the  demise, 
the  defendant  may  plead  that  such   lessor  was  seised,  Sec.  of  a 

*  483         *different  estate  from  that  stated  in  the  declaration,  and  there- 

by shew  that  the  derivative  title  of  the  plaintiff  does  not  exist ; 
but  the  defendant  is  estopped  from  denying  generally,  that  the 
lessor  was  seised  as  staled  in  the  declaration  ;(0  the  defendant 
must  also  plead  specially  performance  of  the  covenant  ;(zi)  or 
excuse  of  performance,  as  by  eviction, (p)  or  by  non-perform- 
ance by  the  plainiifi'  of  a  condition  precedent, (w)  or  by  a  sur- 
render of  the  lease,  Scc.Ci)  or  admitting  the  breach,  the  defend- 
ant must  plead  specially  that  he  is  discharged  ;(?/)  as  by  hig 
bankruptcy,  if  the  action  be  for  a  money  demand  due  before 
the  act  of  bankruptcy,(z)  or  by  accord  and  satisfaction,  arbitra- 
rnent,(a)  former  recovery,  foreign  attachment,  set-off,  release, 
Scc.(^') 
In  Account.  In  an  action  of  account,  there  is  no  general  issue-  The 
defendant  may  plead  infancy,(c)  and  when  sued  as  bailiff  or 
receiver  in  fact,  he  may  plead  that  he  was  not  bailiff,  or  re^ 
ceiver  ;(f/)  but  when  sued  as  tenant  in  common,  under  the 
statute  4  .inn.  c.  16.  if  the  declaration  be  pioperly  framed,  a 
plea  that  the  defendant  is  not  bailifi'  or  receiver,  would  be  in- 

*  484         sufficient  ;(c)  and  if  the  *dcfendant  means  to  deny  the  plaintiff's 

claim,  he  should  traverse  the  tenancy  in  common.  The  de- 
fendant may  also  plead  that  he  hath  accounted,  or  a  release,  ar- 
bitrament, bond  given  in  salisfacdon,  and  the  statute  of  limita- 
tions ;{/)  but  other  matters,  which  admit  that  the  defendant  was 


(0  8T.  R.  4S7.  2  Stra.  81".  2 
Saund.207.  418.  1  Xew  Hep.  160. 
See  the  precedents,  post,  vol.  2,  500. 

(;0  Com.  Dig.  Pleader,  2  V.  13. 
Bull.  N.  P.  165.  1  B.  &  P.  640.  Sec 
the  precedents,  post,  vol.  2.  496. 

(t-)  1  Sauml.  204.  n.  2.  2  Saund. 
176.    2  East,  576.     Post,  vol.  2.  486. 

(7f)  S  T.  R.  3C6.  Pobt,  vol.  2.  484, 
485. 

(a-)  1  Saund.  235. 

(?/)  Com.  Dig.  Pleader,  2  V.  S. 


(2)  4  T.  R.  155. 

1  Saund. 

24; 

I.  n.  6, 

(c)  9  Co.  79. 

Com.  Dig. 

Pie 

:ader. 

2  y.  8,  9. 

{b)  Com.  Dig. 

Pleader,  2 

y. 

8.  &c, 

Ante,  480. 

(c)  Bac.  Abr.  Accompt, 

E. 

Com. 

Dig-.  Accomi)t,  E, 

,  5. 

Id)  Id.  ibid. 

\e)  Wilies,  208 

(./■)  Biic.  Abr. 

Accompt, 

,  E. 

Com. 

Dig.  Accorapt,  E, 

,  4,  5,  6. 

OF  PLEAS   IN  BAR,  Sec.  484 

once  chargeable  and  accountable,  cannot  in  general  be  pleaded   in  Account. 

in  bar  to  the  action,  but  must  be  pleuded  bcibie  the  auditors. (,§•) 

In  DETINUE  the  general  issue  is,  non  dctinet^^h)  which  puts  in   in  Detinue. 

issue  the  facts  of  the  pluinlifT's  property  or  possession,  and  the  ^ 

defendant's  withholding  the  chattels  ;  but  under  tiiia  plea  the 

defendant  cannot  shew  that  the  goods  or  other  chattels  wcvt 

pledged  to  him,  but  must  plead  it  specially  ;  he  may,  however, 

give  in  evidence  a  gift  from  the   plaintiff  or  any  other  fuct  to 

prove  that  the  property  in  the  chattels  is  not  the  plaintiff 's.(/) 

In  each  of  these  actions,  when  brouglit  by  -An  executor  or  ad-  By  or  agRinst 

...  executors,  Sec. 

miniatrafor,  the  defendant  may  not  only  avail  hmiself  of  either  of 

the  before-mentioned  defences,  but  may  in  some  cases  deny  the 
plaintiff's  representative  character.  Where  letters  of  adininis- 
'  tration  have  been  obtained  in  an  inferior  diocese,  the  defendant 
may  plead  in  bar  that  there  were  bojia  notabilia,  or  may  give  that 
fact  in  evidence  under  the  plea  of  ne  unrjues  executor. C^)  In  an 
action  against  an  executor  or  administrator,(/(-)  the  defendant 
may  in  addition  to  any  *of  the  before-mentioned  defences  plead  *    485 

lie  unques  executor,(/)  or  administraior,(7/?)  or  thi.t  no  i-ssets 
have  come  to  his  hands,(«)  and  he  must  plead  specially,  JJcne 
administravit^  ov  /dene  adniifiistravit  /irxtcr^a  sum  not  sufficient 
to  satisfy  debts  of  liigher  nature,  as  bonds  outstanding,  or  judg- 
ments recovered  against  the  deceased,  or  the  defendant,  by 
third  persons, (o)  or  filene  adminlstravit  except  a  sum  ready  to 
be  paid  to  the  plaintiff ;(/«)  and  the  defendant  cannot  avuil  him- 
self of  either  of  those  defences,  under  the  general  issue  ;(<;) 
but  under  the  general  plea  o^  fdtmc  adinmintravit^  an  executor 
or  administrator  may  give  in  evidence  a  retainer  for  a  debt 
due  to  himself,  though  it  is  in  general  advisable  to  plead  liXr 
Where  the  executor  or  administrator  has  no  ground  on  which 


(  ^'O  III- >'»'''•  3  Wils.  73.  (m)  I'ost,  vol.   2.  451.     Com.    Dig, 

(//)  See  tlicform,  post,  vol.  2.  405.  Pleader,  2  D.  7.  13. 

(i)  Co.  Lit  2S3.  a.    See  the  several  {n)  Com.  Dig.  Pleader,  2  D.  7. 

pleiis.     Com.  Dig.  Pleader,  2  X.  3.  (o)  1  Sauiui.    330  to   536.   in  notis. 

(./)  1  Saund.274.  n.3.  Com.  Dig;.    Pleader,   2  D.  9.     Post 

(A)  .See   the  pleadings  in  general,  vol.  2.  451  to  458. 

Com.  Dig.  Pleader,  2  D.  2.  {j>)  Post,  vol.  2.  452. 

(/)   Com.  Dig.   Pleader,  2    D.    7.  \q)  Co.  Lit.  283.  a. 

Post,  vol.  2.  450.  (r)  Co.  Lit.  283.  a.     1    Sauiid.   333. 

n.  6.    Post,  vol.  2.  452. 


485  OF  PLEAS  IK  BAR,  &c. 

By  or  against  to  dispute  the  pldntiff's  debt,  it  is  in  general  advisable  not  te 

an    executor,    j„„.    i.  r  \ 
^p  deny  liXs) 

,flgainst     an        jj,  q^  action  aerainst  an  heir  or  dcvisec,(t)  the  defendent  may 

heir  or  devi'  '  _  ,  ^  '  ' 

see.  not  only  plead  uny  matter  which  might  have  been  pleaded  by 

the  ancestor  or  devisor,  but  may  also  either  deny  the  character 
in  which  he  is  sued,  or,  admitting  it,  may  plead  that  he  has 
nothing  by  descent  or  by  devise,  either  generally(?/)  or  specially, 
viz.  that  he  has  nothing  but  a  reversion  after  an  estate  for  life 

*  486  or  years,(i')  *or  that  he  has  paid  debts  of  an  equal  or  superior 
degree,  to  the  amount  of  the  assets  descended  or  devised,  or 
that  he  retains  the  assets  to  satisfy  his  own  debt,  of  equal  or 
superior  degree,  or  debts  of  a  superior  degree,  due  to  third 
persons. (?f)  The  heir,  if  an  infant,  may  also  pray  that  the  pa- 
rol may  demur,  till  he  is  of  full  age.(T') 

In  case.  The  general  issue  in  an  action  on  the  case,  is  "  that  the  dc- 

'■'■  fcndant  is  not  guilty  of  the  firemises"  {or  "  grievances,") 
"  aOove  laid  to  his  charge,  in  manner  and  form  as  the  said  Jilainfff 
"  hath  above  thereof  comfilained  against  him,  and  of  this  he  fiut» 
^'-  himself  iipon  tlie  country"  &,c.  \n  trespass  \\.  is  similar,  except 
that  the  word  '■'■force"  is  substituted  for  "  wrong"  in  the  com- 
mcncem.ent,  and  "  trcs/iafises,"  for  '^premises"  or  '■^grievances.'* 
It  was  held  by  Lord  Munsfield^[w)  that  "  there  is  an  essen- 
"tial  difference  between  actions  of  trespass,  and  actions  on  the 
"  case.  The  former  are  actions  stricti  juris,  and  therefore  a 
"  former  recovery,  release  or  satisfaction,  cannot  be  given  in  evi- 
"  dence,  but  \-n\x%lhcJdeaded  ;  but  an  action  on  the  case  is  found- 
"ed  upon  the  mere  justice  and  conscience  of  the  plainiifl"'s  case, 
"  and  in  the  nature  of  a  bid  in  equity,  and  in  effect  is  so  ;  and 
«'  therefore  a  former  recovery,  release  or  satisfaction,  need  not 
'*  be  pleaded,  but  i^ay  be  given  in  evidence ;  for  whatever  will 
"  in  equity  and  conscience,  according  to  the  existing  circumstan- 
"  ces,  preclude  the  plaiiitiff  from  recovering,  may,  in  case,  be 
"  be  given  in  evidence  by  the  defendant,  because  the  plaintiff 


(.t)  2  B?.  Rep.  V175.     Post,  vol.  2,  (^^)  Com.  Dig.  Pleader,  2  E.  3. 

451.  n.  («)•  (f)   Com.  Dig.     Pleader,    2    E.  3. 

{t)  hee  the   pleadings   in  general.  Po^t,  vol.  2.  472. 

Com.  Diij.  Pleader,  2  P-.  (w)  3  Buix.  1.353.     1  BI.   Rep.  388. 

{u)   Com.  Dig.   Pleader,    2  E.   3.  S.  C.     I  Wils.  45.     2  Saund.   155.  a^ 

Post,  vtl.  2.  i73.  n.  4.     Sed  qusere  the  gi-c^nd  of  ^e* 

(y)  Com.  Di^.  Pleader,  2  E.  3.  struction. 


OF  PLEAS  IN  BAR  IN  CASE.  ^4,^1 

*'  *must  recover  upon  the  justice  and  conscience  of  his  casCi  ■'"  casve. 
"  and  on  that  only."  In  an  action  therefore  on  the  case,  under  the 
pleu  of  not  guilty,  the  defendant  may  not  only  put  the  plaintiff 
upon  proof  of  the  whole  charge,  contained  in  the  declaration, 
but  may  give  in  evidence  any  justification  or  excuse  of  it,  or 
shew  a  former  recovery,  release,  or  satisfaction  ;(?/)  thus  in  an 
action  for  a  malicious  indictment,  or  arrest  in  a  civil  action,  the 
defendant  may,  under  the  general  issue  shew  that  there  was 
sufficient  or  probable  cause  for  the  proceeding  complained 
of;(z)  so  in  case  for  obstructing  ancient  lights,  a  custom  of 
London  to  build  on  an  ancient  fouudaiion  to  any  height,  may  be 
given  in  evidence  by  the  defendant  ;(a)  and  though  a  li  cense 
must  be  pleaded  in  trespass,  yet  it  is  the  practice  to  admit  it 
in  evidence  in  an  action  on  the  case. (A)  But  in  an  action  for 
words,  or  a  libel,  the  defendant  cannot,  under  the  general  issue, 
give  in  evidence  the  truth  of  the  words,  even  in  mitigation  of 
damages,  but  must  justify  specially,(f)  which  plea  should  not 
in  general  be  put  on  the  record,  unless  the  defendant  be  satis- 
fied that  he  can  support  it  in  evidence,  because  if  pleaded  un- 
successfully, it  would  probably  materially  increase  the  damages, 
though  it  would  not  make  any  difference  in  the  costs. (c/)  But 
where  the  defence  is,  that  the  libel  or  words  were  *published  ^   4.RS 

•r  spoken  not  in  the  malicious  sense  imputed  by  the  declara- 
tion, but  in  an  innocent  sense,  or  upon  an  occasion  which  war- 
ranted the  publication,  this  may  be  given  in  evidence  under  the 
general  issue,  because  it  proves  that  the  defendant  is  not  guilty 
«f  the  malicious  slander  charged  in  the  declaration  ;  as  if  the 
words  were  spoken  by  the  defendant  as  counsel,  and  were  per- 
tinent to  the  matter  in  question,(f/_)  or  were  written  or  spoken 
in  confidence,  and  without  malice,  as  when  a  master  honestly 
and  fairly  gives  the   character  of  a  servant,  to  one  who  asks  his 


(y)  Id.  ibid.    2  Mod.  2rO.     S  Mod.  20.     2  Stra.  1900.     I  B.  &  P.  525.    e 

166.     Com.  Rep.   273.     1    Wils.   44.  B.  6i  P.  225.  n.  a.    1  T.  R.  748.  Com. 

175.     2  Saund.  155.  &,  Dig.  Pleader,    2  L.     Sclwjn,   N.    P. 

(i)  3  MfHl.  1G6.  929.  106R. 

(a)  1  Com.  Rep.  273.     I  Wils.  45.  {d)  4  East,  567. 

VIS.     2  Mod.  274.  (</)  1  Saund.  130.  n.  1.      Cro.   Jat-. 

(b)  8  East,  308.     2  Mod.  6,  7.  90.    Popli.   69.     Selwyn,  N.  P.  929. 
(r)  .See  the  precedents,  post,  vol.  2.  ItftjC. 

^3  to  506.  1  Saund.  130,  n.  1  AV  illes, 


488  OF  PLEAS  IN  BAR  IN  CASE. 

In  cast.  character,  under  pretence  of  hiring  him  ]{e)  or  if  the  words 

were  innocently  read  as  a  story  out  of  a  history,(y)  or  were 
spoken  through  concern,  or  in  u  sense  not  defamatory  •,(g) 
the  defendant  may  plead  these  matters  ;  but  it  is  now  more 
usual  to  give  them  in  evidence  under  the  general  issue.(/f)  It 
is  proper,  however,  to  plead  specially  that  the  defendant  only  re- 
peated the  slander  uttered  originally  by  a  third  person. (?)  By 
the  statute  8  and  9  JVm.  III.  c.  27.  s  6.  was  enacted,  that  no 
retaking  on  fresh  pursuit  shall  be  given  in  evidence  on  the  trial 
of  any  issue,  in  any  action  of  escape,  agahist  the  marshal,  8cc. 
unless  the  same  shall  be  specially  pleaded,  nor  shall  any  special 
plea  be  received  or  allowed,  unless  oath  be  first  made  in  writing 
by  the  defendant,  and  filed  in  the  proper  office,  that  the  prison- 

*  489  er  for  whose  escape  such  action  is  brought,  did  *escape  without 
his  consent,  privity,  or  knowledge. (/)  In  general  when  the  de- 
fence consists  of  matter  of  law,  though  the  defendant  is  at  liber- 
ty to  give  the  matter  in  evidence  under  the  general  issue,  ho 
may  plead  it  specially  ;(J)  and  this  is  frequently  advisable  when 
there  is  no  fact  disputed,  but  only  a  point  of  law,  which  may  be 
decided  upon  demurrer  or  on  a  writ  of  error,  or  where  the  plain- 
tiff i)y  his  replication,  Avould  be  compelled  to  omit  one  or  more 
material  facts  in  the  plea,  and  would  not  be  at  liberty  to  reply 
dc  injuria.,  and  consequently  the  defendant's  proof  rendered  less 
difficult  ',{k)  thus  in  trover  for  a  dog,  the  defendant  may  plead 
that  E  F  was  seised  in  fee  and  lord  of  a  certain  manor,  and  that 
he,  by  warrant,  appointed  the  defendant  game- keeper,  and  that 
such  warrant  was  duly  entered  with  the  clerk  of  the  peace,  and 
that  a  certain  person  not  qualified  by  law  to  kill  game,  was 
using  the  dog  for  the  destruction  of  game,  wherefore  the  defend- 
ant took  him,  Sec.  to  which  plea  the  plaindff  could  not  reply 
Ue  injuria.,  generally,  bccuuse  that  would  put  in  issue  the  seisin 


(r)  Bull.  X.  P.  S.     1  T.  R.  110.     1  (0  2  T.  R.  126.     ?,  Salk.  150. 

B.  k  P.  5'25.  (j)  2  :SIocI.  '274.  276.     3  Mod.  166. 

(/)Cro.  Jac.  91.  ,  Com.    Rep.    273.      1    Wils.   44.   175. 

(^)  4  Co.  1-2.  b.     Popli.  66.  S.  C.  Doct.  Plac.  203.     Cro.  Eliz.  871. 

(/;)  1  Saiind.  130.  n.  1.  (/o)  2  IMod.  277.     1    Slra.   5.     1  B- 

(/)7T.  R.  17.     2  East,  426.    Post,  &  P.   80.    Cro.   Eliz.  539.      1  East, 

vol.  2.  506.  and    see  anxjther  instance  217. 
■whei-e  a  sjjccial  plea   may  be   advisa- 
ble. 1  B.  &  P,  523. 


OF  PLEAS  TN  BAR  IN  CASE.  4S9 

in  feCi  and  the  warrant. (/)      So  in  cuse  for  an  injury  to  a  right  i'^  <:ase. 

of  common,  the  defendant  may  i)iead  as  a  justification,  a  right 

of  common  by  grant  to  himself,  or  that  he  acted   as   servant 

to  the  owner  of  the  soil  seised  in  fee,  and  thereby  materiaily 

lessen  the  evidence,  which  he  would  otherwise  have  to  adduce 

on  the  trial.(n2)    *  I'he  statute  of  limitations  is  not  guilty  with-  ^^^ 

in  two  years,  in  an  action  for  verbal  slander,  actionable   in   it- 

seif^hi)  or  within  six  years  in  any  oiher  action  on  the  case  ;(o) 

as  for  criminal  conversation,  or  debauching  a  daughter,  kc.(/;) 

and  the  statute  must  in  this  action  be  specially  pleaded. (y) 

In  THOVER  the  general  issue  is  /zc/^^'-wV/'j/,  and  itis  not  usual  In  trover. 

in  this   action  to   plead  any  other  plea,  except  the  slalute  of 

limitations,  and  a  release,  and  the  bankruptcy   of  the  piamiiiT 

may  be  given  in  evidence  under  the  general  issue. (r)     Tlie 

defendant,  however,  is  at  liberty   to  plead  specially  any  thing 

which  admits  the  property  in  the  plainiiff,  and  the  conversion^ 

but  justifies  the  latter  ;(.s)  also  the  statute  of  liniitations,(<')  and 

a  former  recovery,  8cc.(«)  but  the  bankruptcy  oi  the  plaintiff 

ought  not  to  be  pleaded. (t^) 

The  general  issue  in  ueplevin  is  nori  cepA  ri\(,do  et  Jlrma^    Of  ayr-frit"', 

.  i^c.   in  replt' 

by  which  the  defendant  puts  m  issue,  not  only  the  takmg,  but    vi«. 

also  the  taking  in  the  place  mentioned  in  the  deciaiation.(jy) 

But  the  defendant  cannot  have  a  return  of  the  cuttle  under  this 

plea,  and  therefore  if  he  want  a  return  he  should  plead  that  he 

took  the  cattle  in  some  other  place,  describing  it,  and  traverse 

the  place  laid  in  the  declaration,  and  in  order  to  have   return, 

should  *avow    or  make    cognisance,   stating    the    cause    for         ^   ^gi 

which  he  distrained, (x)  but  if  the  defendant  ever  had  the  cattle 

in  the  place  stated  in  the  declaration,  in    leading  them   to  the 


(/)  1  Wils.  315.     Cro.  E'.iz.  539.    1  Ante,  4R9.    The  case  in  '2  Ld.  Rayru. 

B.  &  P.  SO.     1  East,  '217.  8CS.  is  erroneous  as  to  this  point, 

(m)  2  Mod.    274.  2/7.     Cro.    Eliz.         (0  I  Lutw.  99. 
559.     Willes,  G19,  620.     1  Stra.  5.  {u)  I  Show,  146. 

(7t)  1  Sid.  95.     Sir  W.  Jones,   196.         (f)  7   V  K.  391.  396. 

(o)  21  Jae.  I.  c.  IG.  s.  3.  (vy)  See  tlie-  precedent,  post,  vol.  2 

(/))  Post,  vol.  2.  265.  n.  (r)- ■'•02.  SOS.     1   Stra.    507.     2   Mod.    199.     I 

(7)  1  Lutw.  99.  2  Sauiid.  03.  n.  6.  Saund.  347.  n.  1.     Gi'.b.  Replev.   I66. 

(r)7T.  R.  391.  2  Wils.  355. 

(«)  4  Mod.  424.    I    Stra.   5.     Com.         (.t)  I  Saund.  547.  a.  1.     Post,   vl 

Dig.  Pleader,  E.  14.     Cro.  Elii.  539.  2.  510, 

Vol.  I.  [  45  ] 


491  OF  PLEAS  IN  BAR  IN  REPLEVIN. 

Ill  replevin.  pound,  though  he  took  them  elsewhere,  he  should  avow  ac- 
cordingly.(y)  Where  the  dis.ress  is  for  jjour-rates,  the  de- 
fendant may  plt;ad  not  guilty,  und  give  the  cause  of  taking  in 
evidence  ;(r)  and  a  general  plea  in  given  by  statute  vi'here  a 
distress  is  taken  for  sewers  ratcs.,(a)  or  under  the  bankrupt 
laws.(/!')  But  the  defendant  must  avow  or  make  cognisance  with 
mure  paiticularity  under  a  distress  for  rent,(cM'ent  charge, (rf) 
or  damage Jl'anant.^r)  And  though  the  statute  11  Geo.  il.  c. 
19.  s.  22.  gives  a  general  avowry  in  cases  of  distress,  for  rent 
service,  £cc.(y" )  it  is  still  advisable  in  some  cases  to  set  out  the 
tide  specially,  in  order  that  a  traverse  of  a  particular  pas  t  of  it 
may  be  taken,  and  that  the  p<u"ies  may  proceed  to  trial  upon 
some  particular  point  in  issue  ■,(g)  and  this  statute  does  not 
extend  to  avowries  for  heriot  custom  or  for  a  vent-charge. (A) 

Jn  trespass.  ^'^  TREsrASs,  whether  to  the  person,  fiersonal  or  7'ealjiroper- 

tijy  the  defendant  may,  under  the  genei'al  issue,  give  in  evi- 
dence any  matter  which  directly  controverts  the  truth  of  any 

•*•   /t09  *allegation,  which  the  plaintiff  on  such  general   issue   will  be 

bound  to  pro\  e.(f/)  and  no  person  is  bound  to  justify  who  is 
not,  /irimajacie,  a  trespasser  ;(e)  thus  the  plea  of  not  guilty  is 
proper  in  trespass  to  persons,  if  the  defendant  committed  no 
assault,  battery,  or  imprisonment.  See.  and  in  tresp^^ss  to  Jier- 
407?a/ property,  if  the  pk.intiff  had  no  property  in  the  goods, 
or  the  defendant  were  not  guilty  of  the  taking,  &c.(/)  and  in 
trespass  to  real  property  this  plea  not  only  puts  in  issue  the 
fact  of  the  trespass.  See.  but  also  the  title,  whether  fret  hold  or 
possessory,  in  the  delendant,  or  a  person  under  whom  he 
claims,  may  be  given  in  evidence  under  it,  which  maiters  shew 
prima  facie,  that  the  right  of  possession,  which  is  necessary  in 
trespass,  is  not  in  tb.e  plaintifi",  but  in  the  defendant  or  the  par- 


( J/)  Post,  vol. -2  .ill,  51'2.  1    Sautul.     347.        See    the    prece- 

(i)43Eiiz.  c.  2.   s.    ]9.      See    the  dents,  po.st,  vol.  '2.  516,517,518. 

precedent,  post,  vol. -2.  51.1.    Co.   Lit.  ^(Z")  See  the  forms,  post,  vol.  2.  512 

2S3.  a.  to  51.T. 

(a)  23  Hen.  VUI.  c.  5.  s.  10.  ig)  2  Saund.  2S4.  d. 

(^b)  1  Jac.  I.  c.  15.  s.  10.  (h)  2  Wi!s.  28.     2  Sauiid.  168.  a.  b. 

{c)  11  Geo.  II.  c.  19.  s.  22.  2  Saund.  1  B.  &  P.  213. 

284.  d.  n.  4.     1  Saund.  347.  ii.  6.  {d)  2  Saund.  159.  n.  10, 

(rf)l  B.  Sc  J'.  213.  (e)  Cowp.  478. 

(e)  2  B.  &  P.  359.  2  Saund.  2S4.  d.  (/)  Cowp.  478. 


OF  PLEAS  IN  BAR  IN  TRESPASS.  492 

ty  under  whom  he  justifies. (,§•)     But  where  the   act   would,  at  Inn-fspass. 
common  law, //;■//»« y?zaV  appear  to   be   a  trespass,  any  mutter 
of  justification  or  excuse,  or  done  by  virtue  of  a  warrant  or  au- 
thority, must  in  general  be  specially  pleaded. (/O 

Thus  in  trespass  to  pcraojisi  son  assault  dtmesne,{i)  modera'e 
correction. (y)  mollittr  manus  imjiofuit  to  preserve  the  peace, (/) 
or  a  justification  in  defence  of  the  possession  of  real  or  personal 
property,(w)  or  by  ''authority  of  law  without  process,  either  as  *    493 

an  individual. (n)  or  as  an  officer,  or  in  aid  of  him  ;(o)  or  under 
civil  process,  either  mesne  or  finaUc/z)  of  superior,(7)  or  infe- 
rior or  foreign  courts,  must  be  pleaded  specially  ;{r)  for  who- 
ever imprisons  another,  (except  in  some  ca;ies  under  particu- 
lar statutes  hereafter  noticed,)  must  justify  himself  by  plead- 
ing, and  shew  specially  to  the  court  that  the  imprisonment  was 
lawful :  this  is  a  positive  rule  of  law,  in  order  to  prevent  sur- 
prise on  the  plaintiff  at  the  trial,  by  the  defendant  then  assign- 
ing various  reasons  and  causes  of  imprisoning  the  plaintiff,  of 
which  he  had  no  notice,  and  which  consequently  he  could  not  be 
prepared  to  meet  at  the  trial  on  the  plea  of  not  guilty,  on  fair 
and  equal  terms  with  respect  to  the  evidence  and  proof  of 
facts,  (s) 

In  trespass  to  fiersonal  property,  a  seizure  as  a  heriot  ser- 
vice may  be  given  in  evidence  under  the  general  issue  ;(0  but 
in  general,  matters  which  admit  the  plaintiff's  property,  as 
well  as  the  seizure,  &c.  must  be  pleaded  •,{u)  as  a  juslifica- 
lion  for  cutting  ropes  or  killing  dogs,(Ty)  or  taking  guns,  Scc.(w) 
A  distress  for  reiit  when  made  on  the  demised  premises,  may 


{g)  8  T.  11.  40.3.     7  T.   R.  3.54.  (»)  6  T.  U.  562.     Post,  vol.  2.  5.V2 

Willes,  222.  to  537. 

(A)  Co.  Lit.  282.  b.  283.  a.     Doug.  (</)  1  Saniul.  10.  79.    Id.  ihid. 

Cll.     2  Roll.  Abr.  682.     12  Mod.  120.  {p)  3  Wils.  370.     I  S:uiiid.  298.  n. 

1  SftunU.  298.  n.  1.     Cora.  Dig.  Plead-  1.     Post,  vol.  2.  537  to  540. 

er,  E.  15,  16,  17.  (7)  Id.  ibid. 

(j)  8  T.  R.  299.     1  Sauml.  77.  296.  (c)  2  East,  200.  274. 

n.  1.  (s)  Co.  Lit.  282.  b.  283.  a.     3  "Wiln 

t.y)  2  C.  k  P.    224.     Post,  vol.  2.  370,  371. 

527,  528.  (0  Ci-o.  Eliz.  32.  2  Saund.  168.  a.  b 

(0  Post,  vol.  2.  525,  5C6,  527.  (w)  Com.  Dig.  Pleader,  3  M.  2.'5. 

(th)  8T.  R.  78.   299.     3  Wils.   71.  \v)  1    Samid.  84.     2  Lutw.  1494.. 

Post,  ^ol.  2.  529  to  533.  Cora.  Dijj.  I'leader,  3  .M.  .33. 

(w)  Com.  Dig.  Pleader,  3  AI.  25.  kc 


493  OF  PLEAS  IN  BAR  iN  TRESPASS. 

J'!  fresp  's^.  be  given  in  evidence  under  the  general  issue, (y)  but  if  made 
*"  494  cff'lhe  demised  *premiscs,  as  on  a  common,  or  under  a  fraudu- 
lent removal,  the  defence  must  be  specially  pleaded  ;(z)  and  a 
distress  or  seizure  for  tolls,(fl)  stallage  at  a  fair,  &c.(A)  under  a 
by-!avi^,(c)  or  for  damac^^e  feasant,  by  the  occupier,(d)  or  a  com- 
moner,(<')  or  other  matter  of  justification,  with  or  without  pro- 
cess, must  be  pleaded  specially. 

We  have  seen  that  in  trespass  to  real  /iro/iernj,  a  freehold  or 
mere  possessory  right  in  the  defendant,  may  be  given  in  evi- 
dence under  the  general  issue  j(/)  but  it  has  been  held  that 
the  defendant  cannot  justify  under  the  general  issue,  cutting 
the  posts  and  rails  of  the  plaintiff,  though  erected  upon  the  de- 
fendant's land,  there  lieing  no  question  raised  as  to  the  proper- 
ty remaining  in  the  ph.inliff  ;(§•)  and  it  is  usual  and  frequently 
advisable  to  plead  liberum  tenementujn,  either  in  order  to  com- 
pel the  plaintiff  to  new  assign,  setting  out  the  abuttals,(/i)  or  in 
case  he  claims  as  tenant  to  the  defendant,  or  to  the  person  on 
whose  behalf  the  supposed  trespass  was  committed,  to  compel 
him  to  set  forih  such  tenancy,  which  tlie  defendant  in  his  re- 
joinder may  insist  has  been  determined  by  notice  to  quit,  Sec. 
^'  495  ""^  liberum  tennncntum  is  a  *good  plea   to  trespass  in  a  seve- 

ral or  free  fishery,  the  owner  of  the  soil  being  firima  facie 
owner  of  the  fishery. (/)  An  excuse  of  the  trespass,  on  ac- 
count of  a  defect  of  fences,  which  the  plaintiff  was  bound  to 
repair,(/(')  and  a  license  from  the  plaintiff,(/)  and  a  justification 
under  a  rent-charge,  or  in  respect  of  any  easement  or  incorpo- 


(i/)  11  Geo.  II.  c.  19.  s.  21.  culture  let  in  or  affix  any  thing  to  the 

(:)  1  Esp.  lit'p.  257.  tVeeholil,  it  becomes  part  thereof,  and 

(rt)  Ld.  Raym.  384.     3  Burr.  1402.  the  property  of  the  lessor,   should  it 

liUtw.  1519.     8  Went w.  124.     Carth.  not  «  yo/Y/ofi,  be  so  as  to  a  trespasser. 

357.    Post,  vol.  2.  548.  (A)    1    Saund.  299.   b.   where    see 

(h")  3  Lev.  224.  227.  observations  on  this  plea. 

(c)  I  T.  R.  118.     4  Mod.  ;?r7.  (0  18  Edw.  IV.  4.    Co.  Lit.  127.  a. 

\d)    1    Saund.    221.     2  Saund.  294.  notes.     Post,  vol.  2.  560. 

Post,  vol.  2.  546.  {k)   Co.   Lit.   283.     2  Saund.  285. 

(e)  2  Wits.  51.     Yelv.  104.   3  Wils.  Post,  vol.  2.  556. 

125.291.     1  Saund.  3t6.  (/)  Ante,  487.     2  T.  R.  168.     Hob. 

(/)  Ante,  491.     7  T.  R.  354.    8  T.  175.     Gilb.   C.  P.    6.3.  Vin.  Abr.  Li- 

R.  403.     Andr.  108.     Willcs,  222.  cense.     Com.    Dig.  Pleader,  3  M.  35 

(_§•)  8  East,  404.   sed  quaere,  see  8  Post,  vol.  2.    560.    But  see  21  Hen 

T.  R.  403.     Even  if  a  tenant  in  agri-  \\\.  28.  pi.  5. 


OF  PLEAS  IN  BAR  IN  TRESPASS. 


495 


real  right,(?«)  as  commoji  of  fishery  ;(o)  or  of  pasture  ;(/;)  or  of  In  trespass 
Uirbary ;((/)  and  a  ris;ht  of  way  either  public(s)  or  private//) 
and  whether  by  ;^runt.(?/)  vvill,(i^)  prescription, (w)  custom  or  of 
necessity/?/)  must  be  pleaded.  So  the  defendant  must  plead  an 
entry  by  authority  of  law  without  process,  as  that  the  locus  in 
quo  was  an  inn,(z)  or  that  the  defendant  entered  to  demand 
payment  of  his  debt;(a)  or  to  prevent  murder  ;(6)  or  by  vir« 
tue  of  process,(c)  criminal  or  civil,  of  a  sviperiorCf/)  or  *infcrior  *   496 

court,(<?)  under  mesne  process,  as  a  iatilat,  ha  J)  or  under 
final  process,  as  a  Ji.fa-iS^  elegit^  &c.  And  in  trespass  to  land, 
where  a  removal  of  personal  property  is  also  alleged,  the  plea 
should,  as  to  the  personal  property,  be  speci.il,  :ind  siiew  pos- 
session of  some  land,  Sec  anrl  justify  the  removal.  Sec.  damage 
feasant^  8cc.(/)  In  all  actions  of  trespi\ss,  whether  to  the  per- 
son, personal  or  real  property,  matters  in  discharge  of  the  ac- 
tion must  be  pleaded  \{j)  as  accord  and  satisfaction, (a)  arbiira- 
ment,(/)  release, (m)  former  recovery,  «)  tender  of  sufficient 
amends,(o)  and  the  statute  of  limitations,  which  in  trespass  to 
persons  is,  thiu  the  defenddUt  was  not  guilty  within  four  years 
and  in  trespass  to  personal  or  real  property  within  six  years. (/i) 
In  an  action  against  a  justice  of  the  peace.,  mayor.,  constable^ 
ckiirchwardenj  and   other  peace-officers.,   or  any  other  acti7;g  in 


(;»)  Per  Ld.  Loughborough.  1 
H.  Bi.  35-2.  2  Sauu.l.  402.  n.  1.  Co. 
Lit.  283.  2  Wils.  173.  Com.  Dig. 
Pleader,  E    15. 

(o)  Cora.  Uig.  Piscary.  Post,  vol. 
2.  5G1. 

(p)  1  Saund.  25.  340.     2  Sau.id.  2. 

Iq)  e,  T.  U.  -18. 

(«)  1  H.  Bl.  352.  8  T.  R.  606.  2 
Saund.  158.  c.  n.  4  k  6.  Post,  vol.  2. 
570. 

(0  III.  ibid.     Post,  vol.  2.  573. 

Ill)  2  Moil.  274.     3  Kast,  294. 

Qv)  I  B.  &  P.  371.  1  Saund.  323. 
B.  6.     2  Saund.  158.  c. 

{~.v)  1  East,  350.  377.  381.  1  B.  k 
P.  371.  I  Saund.  322.  n.  6.  As  to 
pleading  u  prescription  in  general, 
and  failure  in  proof  of  a  part,  see  1 
Burr.  442. 

( I/)  I  Saund.  323.  8  T.  R.  50. 
Lutw.  1487.    Post,  vol.  2.  577. 


(=)  Com.  Dig.  Pleader,  3  M.  35. 
(c()  Id.  ibid.  Cro.  Eliz.  876. 

(b)  2  B.  k  P.  260. 

(c)  1  Saund.  298.  n.  1. 
{d)  3  B.  k  P.  223. 

(f)  7  T.  1?.  655.     Lutw.  914. 

(/)3B.  k  P  223.  Post,  vcl.  2. 
5S2. 

(5)  Post,  vol.  2.  5S7. 

{i)   8    East,  404.  Willes,  222.  n.  h. 

Ij)  3  Burr.  1353.  1  BI.  Kep.  3S8- 
1  Wils.  45.     Ante,  485. 

(^^)  3  Burr.  135.3. 

(/)  Po.st,  vol.  2.  520. 

(in)  3  Burr.  1353. 

In)  Id.  ibid. 

(0)  21  Jac.  I.  c.  16.  Cora,  Dig. 
Pleader,  3  M.  36.  Vin.  Abr.  Tres- 
pass, S.  a.  542.  3  Lev.  37.  Post,  \oL 
2.520,521. 

(/>)  21  Jac.  L  c.  16.  s.  3.  6  East, 
390. 


496  OF  PLEAS  IN  BAR  IN  TRESPASS,  Sec. 

Ill  trespass,  their  aid  and  assistance  or  by  their  command  for  any  thing  done 
by  them,  by  virtue  or  reason  of  their  office,  the  i^eneral  issue 
may  be  pleaded,  and  the  special  matter  given  in  evidence(9) 
and  there  is  a  similar  provision  in  the  highway ,(r)  turnpike, (.v) 
militia  and  assessed  tax  acts,  and  in  various  other  statutes  iu 
protection  of  persons  acting  in  the  execution  of  their  office, 

*  497  *'^^  others  in  aid  of  them.  It  is  also  a  general  rule  at  common 
law,  that  matters  in  mitigation  of  damages,  &c.  which  cannot 
be  specially  pleaded,  may  be  given  in  evidence  under  the 
general  issue. (/) 

In  ejectment.  "^^  EjECTMEjJT,  a  defendant  when  he  appears,  is  compelled 
to  enter  into  the  consent  rule,  and  to  plead  the  general  issue, 
consequently  in  this  action  no  special  plea  can  be  adopted  ;  we 
have  seen,  however,  that  the  court  will  in  some  cases  on  spe- 
cial application  permit  the  defendant  to  plead  to  the  jurisdic- 
tion.(?/) 


Of  pleatTinp'         From -the  above  instances  and  observations,  it  may  be  col- 

the  general      ]ected,  that  any  matter  of  defence  which  denies  what  the  plain- 
issue,  or  a  '  ■' 
special  plea  ill  tiff  would  on  the  general   issue  be   bound  to  pi'ove  in  the  first 

instance,  in  support  of  his  action,  may  and  ought  to  be  given 
in  evidence  under  that  plea  ;(a)  but  that  any  ground  of  de- 
fence, which  admits  the  facts  alleged  in  the  declaration,  but 
avoids  the  action  by  matter  which  the  plaintiff  would  not  be 
bound  to  prove  or  dispute  in  the  first  instance,  on  the  general 
issue,  may  be  pleaded  specially. (3)  Thus  in  an  action  of  as- 
smnfisity  matter  which  shews  that  no  such  contract  was  made, 
cannot  be  pleaded,  but  matter  which  admits  that  such  a  con- 
tract was  made,  but  shews  that  it  is  not  binding  in  point  of  law, 
in  respect  of  the  coverture,  infancy,  Sec.  may  be  pleaded.  So 
in  trespass  for  taking  personal  property,  the  defendant  cannot 


(?)  21  Jac.  I.  c.  12.   s.    5.     Co.  Lit.  (?/)   Ante,  430. 

283.  («)  4  Mod.  405.      Ld.   Raym.  38. 

(?•)  13  Geo.  III.  c.  78.  3  Bl.  Com.  309. 

(s)  13  Geo.  HI.  c.  84.  {b)  Ld.  Raym,  S8,  89- 
.(f)  Co.  Lit.  283.  a.     2  B.  &  P.  223. 


OF  PLEAS    IN  KAR. 


*498 


*plead  ftro/ievty   in   a  stranger  or  in  himself, {c)  because  that   Of  pkadinx 
goes  to  contradict  the  evidence  which  the  plaintiff  must  on  the  me^ i.Aq'^adal 
general  issue  adduce  in  support  of  his  action. (J)  ^'j*-'?-  '"■  i'"^"*^- 

Where  tlie  defence  consists  of  matter  of  fact,  amounting  to 
a  denial  of  the  allegation  which  the  plaintiff  must  prove  in  sup- 
port of  his  declaration,  the  general  issue  must  be  pleaded,  or 
it  would  be  a  good  cause  of  ajiecial  demurrer,  that  the  plea 
amounts  to  the  general  issue  ;(e)  though  there  are  cases  in 
which  it  has  been  adjudged,  that  it  being  in  the  discretion  of 
the  court,  when  a  plea  amounting  to  the  general  issue  shall  be 
allowed,  the  plaintiff  ought  not  to  demur,  but  should  move 
the  court,  for  a  ruie  to  shew  cause,  why  the  general  issue 
ouglu  nol  to  be  entered  \{f)  so  an  entire  plea  is  good,  though 
to  purt  of  the  declaration  it  amount  only  to  the  general  issue. (5') 
The  grounds  on  wliich  pleas  amounting  to  the  general  issue 
are  objected  to,  are,  that  they  tend  to  unnecessary  prolixity 
and  expense,  and  draw  to  the  examination  of  the  court  what  is 
proper  to  be  determined  by  a  jury. (A) 

But  as  we  have  just  seen  in  many  cases  M'here  the  defence  Implied  co- 
consists  of  matter  of /a-Tf,  the  defendant  *may  either  plead  it  ^  tqq 
specially  or  give  it  in  evidence  under  the  general  issue, (/)  and 
in  all  actions  the  defendant  may  plead  any  matter  which  shews 
why  the  action  does  not  lie,  and  which  being  matter  of  law  is 
proper  to  be  shewn  to  the  court  ;(Xr)  as  in  assumpsit.,  infancy, 
payment,  Sec.  In  these  cases,  from  the  nature  of  the  defence, 
the  plaintiff  has  an  imfilied  colour  of  action,  bad  indeed  in  point 
of  law,  if  the  facts  pleaded  be  true,  but  which  is  properly  re- 


(c)  Ld.    Raym.    88,  89.     1  Ventr.  (/)    Hob.    12".      1  Leon.    178.     2 

249.     2  Lev.  92.    Cro.  Eliz.  329.  Roll.  Rep.  140.    Com.  Dig.   Pleader, 

(J)  Bac.   Abr.  Pleas,  G.  3.     Com.  G.  l4.     See  also  Doct.  Plac.  204.    Co. 

Dig.  Pleader,  E.  13,   14.  Lit.  303.  b. 

(e)     3  Bl.  Com.    30'.l.     Com.   Dig.  ( g)  3  Lev.  40. 

Pleader,  E.  13, 14.     Bac.  Abr.  Pleas,  (A)    Bac.   Abr.  Pleas,  G.  3.     Gilb- 

G.  3.       6  East,    597.        10  Co.  95.   a.  C.    P.      Com.  Dig.   Pleader,    E.   13- 

Cro.  Car.  157.     Cro.  Eliz.  147.      Ld.  Hob.  127. 

Raym.  552.  this  was  formerly  ground  if)  Com.  Dig.  Pleader,  E.  14.    Bac. 

of  error,  but  was  aided  by  32  Hen.  Abr.  Pleas,  G.  3.  what  is    matter  of 

\  in.  c.  30.     I  Saund.  228.  c.     Wliat  law,  Wilks,  410. 

is   matter  of   law,    sec   Willcs,  410.  (Jc)    Bac.  Abr.  Pleas,  G.  3.      Gilb. 

An  aigumcntative  plea  amounting  to  C.  P.  62.  C6. 
general    issue,    bad  on   demurrer,  6 
East,  597. 


499  '  OF  GIVING  COLOUR. 

oy  coifjin:  ferred  to  Uie  decision  of  the  court. (/)  So  a  plea  in  trover, 
that  yt  was  possessed,  and  lost  the  goods,  that  B  found  them, 
and  gave  them  to  the  plaintiff  who  lost  them,  and  that  the  de- 
fendant found  them,  and  by  the  command  of  ^4,  converted  them, 
was  held  sufficient,  because  it  gave  an  implied  colour  by  con- 
fessing the  possession  and  firotierty  in  the  plaintiff  ag.^inst  all 
but  the  lawful  owner.(?") 

So  without  giving  express  colour,  the  defendant  may  plead  in 
trespass  or  trover,  that  he  was  possessed  of  the  goods,  but  not 
saying  they  were  his  own,  and  sold  them  in  market  overt  to 
the  defendant ;  or  that  B  took  them  de  quodam  ignoto,  and 
waived  them  within  the  defendant's  manor,  wherefore  he  took 
them  ;  because  such  plea  gives  an  implied  colour,  and  does 
not  deny  but  that  the  property  was  in  the  plaintiff;  and  the  de- 

*    500  fcndant  is  not  bound  to  shew  expressly   in    *whom  it  was.(n) 

So  in  trespass  for  taking  corn,  the  defendant  may  pleatl  that 
he  took  them  as  tythe  or  as  wreck,  without  giving  express  co- 
lour.(o)  The  plea  of  liberum  tenanentum  may  also  be  consi- 
dered as  giving  implied  colour,(//)  for  it  admits  that  in  point 
oi/act,  the  plaintiff  may  have  been  in  possession  of  the  locus 
in  cjuo,  (which  as  in  the  case  of  personal  property  firima  facie 
entitles  the  plaintiff  to  maintain  trespass  against  all  the  world, 
but  the  rightful  owner,)  (r)  but  insists  that  in  point  of  law,  such 
possession  is  unlawful. (a)  So  in  trespass  to  lands  if  the  de- 
fendant claim  under  a  demise  from  the  plaintiff,  express  co- 
lour need  not  be  given  ;(0  however,  the  unnecessary  addition 
of  colour  appears  to  be  no  ground  of  demurrer,  for  the  intro- 
duction of  superlluous  words  of  form  will  not  vitiate. (u) 

Of  c-xprcss  But  where  from  the  nature  of  defence,  the  plaintiff  would 

have  no  implied  colour  of  action,  the  defendant  cannot  plead 
specially  any  matter,  which  controverts  what  the  plaintiff 
would  on  the  general  issue  be  bound  to  prove,  without  giving 


(0  Tidd,  600.  (/>)  7  T.  R.  354.     8  T.  R.  403. 

l>n)   Ci-o,  Eliz.  262.  539.     8  Co.  90.  (r)  Cm.  Eliz.  262.     1  East,  244. 

b.     Com.   Dig.   Pleader,  E.   14.  ace.  (s)  As  to  this  plea,  see  1  Saund. 

Ltit.  185.     I  Leon.  178.  semb.  contra.  299.  c. 

(h)  10  Co.  90.  b.  (0  3  Salk.  273. 

(o)   10  Co.  88.  a.  J«e.      Reg.  Plac.  («>  I  East,  219. 
304. 


OF  GIVING  COLOUR.  500 

cx/ireas  colour  ;(x)  thus  in  an  action  of  trespass  to  land,  if  the  Of  co'our. 
defendant  plead  a  possessory  title  under  a  demise  from  a  third 
"person  ;  this  plea,  shewing  th;tt  the  right  of  possession  is  in  *  501 
the  defendant,  would,  without  giving  express  colour,  amount 
to  the  general  issue,(i/)  for  it  goes  to  deny  that  the  trcsp.iss 
was  committed  in  the  plaintiff's  close,  and  shews  the  right  of 
possession  in  the  defendant ;  but  if  the  defendant  after  stating 
his  own  title  supposes,  as  is  usual,  that  the  plaintiff  entered 
upon  his  possession  under  colour  of  a  former  deed  of  feoffment 
without  livery,  or  of  a  charter  of  demise  made  before  the  de- 
mise to  the  defendant,  and  that  the  defendant  re-entered,  this 
creates  a  question  of  law  for  the  decision  of  the  court,  and  by 
that  means  prevents  the  plea  from  amounting  to  the  general 
issue,  and  being  matter  of  supposal,  it  is  not  traversable  ;(r 
so  in  trespass  for  taking  goods,  if  the  defendant  plead  that  a 
third  person  was  possessed  of  them.,  as  of  his  ovjn  projier  goods^ 
and  sold  them  in  market  overt  to  the  defendant,  the  defendant 
must  give  colour,  for  his  plea  alleging  that  A  was  possessed 
as  of  his  own  property,  amounts  to  a  denial  that  the  plaintiff 
had  any  properly  in  them,  and,  therefore,  gives  no  colour  of 
action  ;  and  the  colour  usually  given  in  such  cases,  is,  that 
the  defendant  bailed  the  goods  to  a  stranger,  w  ho  delivered 
them  to  the  plaintiff  from  whom  the  defendant  took  them.(rt) 

Every  ex/iress  colour,  it  is  said,  ought  to    have    four  quali-  Furm  of  co- 
ties  ;  first,  it  ought  to  be  a  matter  of  ti'Je  doubtful  to   a  jury, 
as  where  the   defendant  pleads  *that  the  plaintiff  claiming  by  *    502 

colour  of  a  deed  of  feoffment,  Sec.  that  is  sufficient,  for  it  is  a 
doubt  to  lay  gents,  if  land  shall  pass  by  deed  only  without 
livery  ;  seco-ndty,  that  colour  as  such  ought  to  have  continuance 
although  it  wants  eflect,  as  if  the  defendant  give  colour  bv 
colour  of  a  deed  of  demise  to  the  plaintiff  for  the  life  of  J  S, 
who  it  appears  by  the  pleadings,  was  dead  before  the  trespass, 


(x)  2Sauiid. '!()1.        10  Co.  88.  &c.  {ij)  1   Saund.    401.      7  T.  R.   .154. 
Cro.  Eliz.   76.      8  T.  U.  406.     As   to  8  T.  R.  4()6.    1  P^asl,  215.    Com.  Dig- 
colour  ill    [ilt-adiiis;  in  j;oiierftl,  see  10  Pleader,  3  M.  -VO,  41. 
CoSS.  kc.     1  East,  215.    3  Bl.  Cora.  (:)  1  Kast,  21.3.  215.      SSalk.  2:.: 
3O9.      Re-     Flac.   303.      Doct.  Plac.  ((.)   10 Co.  90.  b. 
Colour.      Doct.  &.  Stud.  lil).  2.    c.  S,"!. 
.VSalk.  273.     Bac.  Abr.  I'leas,  1.  8. 

\0h.   I.  [  46   ] 


502  <->i''  PI^EAS  IN  BAR. 

Of  colour-  this  is  not  sufficient,  because  the  colour  doth  not  continue  .;. 
but  the  defendant  may  well  deny  the  effect  of  it,  viz.  that  the 
plaintiff  claims  by  colour  of  a  deed  of  demise  to  him  for  his 
life  ;  whereas  nothint^  passed  thereby  ;  therefore,  there  is  a 
difference  between  the  continuance  of  the  colour  and  the  ef- 
fect of  it  ;  thirdly,  it  ought  to  be  such  a  colour  as,  if  it  were 
of  effect,  would  maintain  the  nuture  of  the  action,  as  in  an  as- 
sise, colour  of  a  freehold  ought  to  be  given,  &c.  fourthly.^  co- 
lour ought  to  be  given  by  the  first  conveyance,  otherwise  all 
the  conveyance  before  is  waived  ;(6)  and,  therefore,  where  the 
defendant  derived  a  title  to  himself  by  divei's  mesne  convey- 
ances; and  gave  colour  to  the  plaintiff,  by  one  who  was  last 
pamed  in  the  conveyance,  this  was  held  insufficient,  and  that 
he  should  have  given  colour  by  him  who  was  first  named  in 
the  conveyance  ;(c)  and  in  giving  colour  under  a  feoffment, 
the  word  charter  or  deed  must  not  be  omitted. (rf)  The  omis- 
sion   of  express  colour,  when  necessary,  will  be  aided  by  the 

*    503  replication, (e)  though  not  upon  general  demurrer,(y)  *and  the 

want  of  giving  colour  is  aided  after  verdict  by  32  Hen.  VIII. 
c.  30.( -) 

When  to  Although  the  defendant  may  be  at  liberty  to  give  his  ground 

cial'hi  '  ^^  defence  in  evidence  under  the  general  issue,  there  are,  as 
we  have  seen  in  the  instance  of  the  plea  of  infancy,  libcrum 
tenementiun.  Sec.  many  cases  in  which  it  maybe  most  expedient 
to  plead  specially,  in  order  either  to  compel  the  plaintiff,  in 
his  replication,  to  admit  some  of  the  facts  stated  in  the  plea, 
and  thereby  to  narrow  the  defendant's  evidence,  or  to  compel 
the  plaintiff  to  disclose  his  title.  Sic.  and  thereby  narrow  the 
ground  on  which  he  miglitrest  his  case  on  the  trial.  It  would 
be  foi'cign  to  the  oi>ject  of  this  treatise  to  attempt  to  enumerate 
^  all  the  various  instLiUces  in  which  it  may  be  advisable  or  not  to 
plead  specially.  In  some  cases  where  a  justification  is  pleaded 
it  may  be  advisable  not  to  plead  the  general  issue  ;  thus  in  tres- 
pass quare  clausum  f regit,  if  the  plaintiff's  possession    cannot 


{li)    As   to  colour  in  genei-al,  see         (J)    Irl.  ibid. 
10  Co.  91.  b.      Doet.  Plac.  tit.  Colour,         (c)  Ld.  Rayra.  551,  552. 
72.  kc.     Bac.  Abr.  Pleas,  1.  8.     Com.         (,/)  Id.  ibid.      Sed  vide  ante,  498 

Dig.  Pleader,  3  M.  40,  41.  and  4  x\nn.  c.  16.  s.  1. 

(c)  2  Roll.  Rep.  140.  (5  )   1  Saund.  228.  c. 


WHEN  TO  PLEAD   SPECIALLY,  See.  503 

be  disputed,  and  the  defendant  rely  upon  a  right  of  way,  it  is  U'J'.en  to 
better  not  to  plead  the  general  issue,  in  order  that  tiie  defend-  cidhi. 
ant's  counsel  may  begin  at  the  trial,  and,  that  thereby,  in  case 
the  plaintiff  examines  any  witnesses  in  chief,  the  defendant's 
counsel  may  have  the  advantage  of  the  reply.  On  the  ether 
hand,  in  an  action  for  assault  and  battery,  it  is  not  advisable  to 
plead  specially,  justifying  the  battery,  if  there  be  the  least 
doubt  of  establishing  the  justification,  *for  where  a    battery  is  *    594 

not  admitted  by  the  plea  the  judge  must  certify  to  give  the 
plaintiff  his  full  costs,  if  he  obtain  a  verdict  for  damages  less 
than  40.9.  but  where  the  defendant  by  his  plea  admits  a  battery, 
and  it  is  found  against  him,  no  certificate  is  necessary  ;(//)  so 
in  trespass  quare  clausum  fregit  if  the  defendant  plead  a  li- 
cense or  other  justification,  to  the  whole  of  the  trespass  which 
docs  not  make  title  to  the  land,  and  if  it  be  found  against  him 
the  plaintiff  is  entitled  to  full  costs,  without  a  certificate, 
though  he  do  not  recover  40s.  damages  -/d)  however,  in  slan- 
der, though  the  defendant  justify,  and  it  be  found  against  him, 
yet  if  the  damages  be  under  40s.  the  plaintiff  cannot  recover 
more  costs  than  damages  ;(A-)  in  the  latter  action,  therefore, 
there  is  no  objection  to  a  special  pica  on  the  ground  of  costs, 
though  it  is  not  advisable  to  justify  on  the  ground  that  the 
words  are  true,  unless  the  plea  can  be  supported  by  indisputa- 
ble evidence,  because  such  a  justification  when  ineiibctudi,  will 
in  general  materially  enhance  the  damages. 

Care  should  be   taken   to   plead  in   the  first  instance   every  AH  flerencci? 
matter  of  defence  of  which  the  defendant  would  not  be  at  liber-  pieo'iie^)   "^ 
ty   to  avail   himself  under  the   general  issue  :  for  though  the 
court  will  in  general  give  the  defendant  leave  to  add  or  alter  a 
plea,  where  tlie  justice  of  the  case  requires  it,  yet  this  will  be 
only  on  payment  of  costs  incurred  by   his  mistake  ;  and  if  the 
cause  should  proceed  to  trial,  and  be  found  against  the  defend- 
ant  on  account  of  *the  omission  of  one   or   more    grounds  of         ^    5Q.'^ 
defence,  he  will  in  general  be  precluded   forever  from  taking- 
advantage   thereof,  unless  in  some  cases  by  audita  querela^  or 


(A)    fi  T.  R.    564.       Tid.l's  Prac.         (»)     7  T.   R.     660.      7  East,    325. 
4tl»  edit.  866.  Tidd's  Pi-ac.  4th  edit.  867. 

C.«"l  4  East,  567. 


505  ^^1'  PLEAS  IN  BAR. 

.91!  defences  cri'or  in  i'lict  corcvn  tichis  ;(/)  and  as  it  is  a  i:ule  of  pleading-  Uiat  a 
tube  phuded.  (departure  will  not  be  allowed,  the  defendant  cannot  rectify  the 
omission  of  a  ground  of  defence  by  his  rejoinder  ;  this  fre- 
quently occurs  in  debt  on  an  arbitration  bond,  in  which  if  the 
defendant  merely  plead  no  award,  he  puts  the  plaintiff  to  reply, 
settini;  out  an  award,  and  the  defendant  cannot  rejoin  that  it  was 
insufficient,  or  that  he  performed  it,  Sec. 
Of  sliam  ar.d  It  is  very  usual  for  the  purpose  of  delay  to  plead  what  is 
iv^ij;ii.!e  picas,  j^rmed  a  sham  plea  ;  this  practice,  tliough  it  still  prevails,  is  dis- 
countenanced by  the  courts,(7//)  and  though  the  replication  to 
such  a  plea  may  be  insufficient,  the  court  will  give  leave  to 
amend  vritliout  payment  of  costs  ^iji)  therefore  in  the  adoption 
of  these  pleas,  in  instances  which  may  be  warranted  by  the 
practice  of  the  bar,  cure  should  be  taken  to  plead  those  which, 
though  calculated  to  obtain  time,  are  concise  and  usual,  and  not 
calculated  to  create  unnecessary  expense,  or  intricacy.  In 
framing  a  special  plea,  it  is  also  necessary  to  consider  w  hether 
tl.e  defendant  is  r.nder  terms  of  pleading  issuably,  which  sig- 
nifies u  plea  in  chief  to  the  merits,(o)  upon  which  the  plaintiff' 
may  take  issue  and  go  to  trial, (/;)  or  a  demurrer  for  some  de- 
^  KC\P.  ^^^'^  ^^  substaiice.((,')  A  plea  *in  abatement  is  not  an  issuable 
plea,(r)  nor  a  plea  of  alien  enemy,(s)  nor  an  untrue  plea  of 
judgment  recovered  ;(/)  but  a  true  plea  that  a  bail-bond  was 
taken  for  ease  and  favour,(;/)  and  a  tender,(-i')  and  the  statute 
of  limitalions,(Ty)  and  a  plea  though  informal, (.r)  are  issuable 
pleas.  When  the  defendant,  being  under  the  terms  of  plead- 
ing issuably,  pleads  a  sham  plea,  or  demurs  for  want  of  form, 
judgment  may  be  signed  ;(j/)  and  \\  here  several  pleas  are 
pleaded,  one   of  which  is   not  issuable,  it  will  vitiate  all  the 


(/)  Tidfl,  3(1    edit.   1047,  lt»-lS.   and  (r)  1  Burr.  59.     Barnes,  263. 

id-  Index,  uudiUi  quicvfla.     '2  Saimd.  {s)  8  T.  R.  71. 

1J7  U)  151).  (0  1  Bl.  Rep.  .57fi. 

(w)  IJac.  Abr.  Pleas,  G.  4.     1  Ka^t,  (,';)  1  Burr.  C05. 

STi.  '  (-!')  1  Burr.  59. 

(h)  Id.  ibid.  (vc)  .'3T.  R.  124.     1  B.   &    P.    2'28. 

(o)  3  B.  k    P.  171.     Tid.i's  Prat.  1  Bl.  Rep.  35.     2  T.  R.  390. 

4tli  edit.  418.  (.r)  Rep.  temp.  J  lard  w.  179.     5  T. 

(/;)  7  T.  R.  530.    Barnes,   263.     2  R.  152. 

Burr.  782.  {y)  Tidd,  3d  edit.  429.  n.   c.  4th 

(ry)  3  Burr.  1788.      2  B.  k  P.  446.  edit.  419- 
Tidii's  Praf.  4lh  edit.  418,  419. 


ALL  DEFENCES  TO  BE  PLEADED.  50$ 

others,(r)  and  where  the  defendant  l)eing  under  an  order  to   Of  sham  and 
plead  issuiibly,  puts  in  a  sham  demurrer  to  some  of  the  counts,  '■''■"•'^"r'^'^^- 
and  pleads  issuably  to  the  rest,  judgment  by  nil  elicit  as  to  the 
whole  may  be  signed  ;(«)  where,  however,  it  is  doubtful  whe- 
ther the  plea  be  issuable,  the  safer  course  in  term  time  is  to 
move  the  court  to  set  it  aside. (ii) 


//.  OF  TUi:  QUALITIES  OF  PLEAS  LV  BAR. 

There  are  some  general  (juatiiiea,  which  affect  all  picas  in  bar, 
and  some  rules  which  prevail  in  the  conttruction  of  them, 
which  it  is  advisable  to  consider  beibre  we  inquuc  *into  their  ^  ^q-t 
form.  The  general  (jualities  of  a  plea  in  bar,  are,  1st.  That  it 
be  adapted  to  the  nature  and  form  of  the  ac.ion,  and  also  be 
conformable  to  the  count.  2dly.  That  it  answer  all  which  it 
assumes  to  answer,  and  no  more.  3dly.  In  the  case  of  a  spe- 
cial pica,  that  it  confess  or  omit  the  fact.  4thly.  That  it  be 
single.  5thly.  Certain.  6lhly.  Direct  and  positive,  and  not 
argumentative.     7thiy.  Capable  of  trial  ;  and,  Sthly.  True. 

1st.  Every  plea  in  bar,  must  be  adapted  to  the  nature  of  the  1st.  Conform- 
action,  and   conformable    to  the  count. («)     V/c  have  already  !|(^tt,n    arnl"^ 
seen  what   are    the    appropriate    generid  issues,   and    special  <5"'J'-t- 
pleas  in  each  action.     If  the  defendant  plead  a  plea  not  adapt- 
ed to  the   nature  of  the  action,  as  Jiil  debet  in  aasum/'.oit^^b) 
or  non  assumpnit  in  debt,(f)  the  plaintiff  may  treat  it  as  a  nul- 
lity and  sign  judgment ;  so  if  not  guilty  be  pleaded  in  a-isttrnfi' 
sit  the  plaintiff  may  demur,  though  it  would   be  aided  by  ver- 
dict •,{d)  but  the  plea  of  not  guilty  in  an  aclion  of  debt   on   a 
penal   statute,  is  not  such  a  nullity  as  will  warrant  the  plaintiff 
in  signing  judgm.ent  ;(e)  and  where  the  plea,  though  informal, 
goes  to  the  substance  of  the  action,  as  7ul  ?:ebct  to  debt  on  bond, 


(r)  3  T.  R.  305.  '  (c)  6  East,  .i49. 

{a)  t  East,  4n.  (r/)  2  Sti-ii.  10-2-2.     Bac.  Abr.  Pka?, 

(6)   r,wi:  5'.t.    2  T.  n.  390.     7  T.     I.  1. 
H.  :'30.  (f)  1    T.  R.  '\Cr2.     3   B.  &  P.  111. 

((/)  Co.  Lit.    303.  a.   2S5.    b.  Bac.     171.     Com.    ])i-.    Fle^tdcr,  2  ^.  11.  s. 
Abr.  Pleas,  I.  per  tot.  17. 

(i)  Barnes,  257.  ace.     Rep.  temft. 
llarilw.  179.  ccmh.  coiif. 


507  OF  PLEAS  IN  BAR. 

II.  Qualities,  the  plaintiff  should  demur  and  not  sign>  judgment ;(/)  and  in 
general,  where   the  defendant  pleads  an  improper  plea,  the 

*  508  safer  course  is  to  demur,  or  move  the  court  to  set  it  *aside.(5') 
The  plea  must  not  only  be  adapted  to  the  nature  of  the  action, 
but  also  be  conibrniablc  to  the  count :  thus  if  an  assignee  of 
a  bankrupt  declare  that  the  defendant  was  indebted  to  the 
bankiupt,  and  promised  the  plaintiff  as  assignee  to  pay  him,  the 
defendant  cannot  plead  that  the  cause  of  action  did  not  accrue 
to  the  bankrupt  w  ithin  six  years,  because  the  plea  does  not  an- 
swer the  promise  in  the  declaration,  and  precludes  the  plaintiff" 
from  proving  a  promise  to  himself,  and  is  therefore  bad  on  de- 
murrer ;(/i)  and  in  debt  gui  tarn,  a  plea  that  the  defendant  doth 
not  owe  to  the  plaintiff  alone  is  sufficient,  though  if  it  had  been 
nil  debet  generally,  it  would  have  sufficed. (0  So  it  is  a  rule, 
that  if  to  a  transitory  action  the  defendant  plead  any  matter 
which  is  itself  transitory,  he  is  obliged  to  lay  it  at  the  filacc 
mentioned  in  the  declaration  ;{])  but  if  the  justification  be  lo- 
cal, the  defendant  must  plead  it  in  the  county  or  parish  where 
the  matter  arose,  and  conclude  with  a  traverse  of  having  been 
guilty  elsewhere  ;(a)  and  at  common  law,  the  cause  must  have 
been  tried  there,  and  not  in  the  county  where  the  action  was 
laid,  otherwise  it  was  error,  though  this,  as  far  as  regards  the 
trial,  no  longer  obtains,  the  action  being  uniformly  tried  in  the 

^  509  county  where  the  x'ejmf  is  laid  in  the  declaration. (^)  So  *Mrhen 
the  time  is  not  material,  it  is  a  rule,  that  the  plea  should  follow 
the  day  in  the  declaration,  and  if  it  be  material  to  vary  from  it, 
the  plea  should  conclude  with  a  traverse. (?»)  Where,  however, 
there  is  no  ground  to  intend  the  contrary,  the  plea  will  be  con- 
sidered as  conformable  to  the  count :  thus  in  asfnunfisit  against 
an  executor  on  the  promise  of  his  testator,  the  defendant  plead- 


(  /■)  5  T.  R.  152.      5  Esp.  C.  N.  P.  85.  n.  1.     2  Saund.  5.  n.  3.  Com.  Dig. 

.\iite,  506.  n.  (.«.).  Pleader,  E.  4.     C.  20.  &  tit.  Action, 

{g)  1   Bui-r.   5<}.     2  T.  R.  390.     7  N.  5.  12.     Vin.  .\br.  Trial,  M.  a. 

T.  U.  530.  Rej).  tfinp.  Har«hv.  179.  5  (A,)  LI.  ibid.     I  Sauud.  78.  82.  n.  3. 

T.  K.  152.  2  Saund.  5.  n.  3.     Post,  vol.  2.  530.  n. 

(A)  2  SU-a.  'J19.     2  H.   Bl.  5G1.     2  {q). 

Saii'.id.  63.  d.  (0  Id.  ibid.     Sed    qu.  1  Saund.  98. 

(J.)  Hob.  3-'r,  328.     Reg.  Plae.  302.  n.  1. 

Bac  Abr.  Action  qui  tarn,  U.     Post,  (w)  1   Saund.  14.  78,  79.   82.  n.  3. 

tol.  2.  459.  n.  (e).  2  Saund.  5.  n.  3.     Com.  Dig.  Pleader, 

(J)  1   Sauud.  217.  u.  1.  8.   a.   n.   2.  E.  4. 


THEIR  QUALITIES.  509 

ed  that  he  did  not  undertake,  and  it  was  objected  that  it  did  not   U.   Qiialit^rs 
appear  by  the  plea  who  did  not  assume,  but  it  was  adjudged 
that  it  shall  be  intended  the  testator,  as  there  wis  no  count  in 
the  declaration,  on  a  promise  by  the  executor.(«) 

2dly.    It  is  a  rule  that  every  plea  must  answer  the  whole    -'H."-      ^}^^* 

answer  ail    it 

declaration  or  count,  or  rather  all  that  it  assumes  in  the  intro-  assumes  to 
ductory  part  to  answer,  and  no  more.(o)  If  a  plea  begin  only  ,^o  more, 
as  an  answer  to  part,  and  is  in  truth  but  an  answer  to  part,  the 
plaintiff  cannot  demur,  but  must  take  his  judgment  for  the  part 
unanswered,  as  by  nil  elicit :  and  if  he  demur  or  plead  over,  the 
whole  action  is  discontinued  ;(/2)  and  it  is  frequently  judicious 
to  plead  only  to  part,  or  to  admit  a  part  of  the  cause  of  action, 
in  order  to  avoid  the  costs  of  the  trial  of  such  matter. (y)  So 
if  the  plea  profess  to  answer  only  a  part,  but  afterwards  answers 
more,  it  has  been  held  that  the  plaintiff  *should  not  demur,  ^    ^■i(^ 

but  should  take  his  judgment  for  the  part  not  mentioned  in  the 
beginning  of  tlie  plea.(r)  But  if  a  plea  profess  in  its  com- 
mencement to  answer  more  than  it  afterwards  answers,  the 
whole  plea  is  bad,  and  the  plaintiff  may  demur  ;(.v)  as  if  in  tres- 
pass the  defendant  assume  in  the  introductory  part  of  his  plea 
to  justify  an  assault,  battery,  and  nuounding;  and  afterwards 
merely  shews  that  by  virtue  of  a  writ  he  arrested  the  plaintiff, 
but  shews  no  excuse  as  to  the  nvounding  ;{t)  but  these  rules 
should  be  understood  with  this  qualification,  that  the  part  of  the 
declaration  which  is  professed  to  be,  but  is  not  answered  by  the 
plea  is  material,  and  the  gist  of  the  action  ;  for  where  any 
thing  is  inserted  in  the  declaration,  merely  as  matter  of  agi^ra- 
vation,  the  plea  need  not  answer  or  justify  that,  and  the  an- 
swering the  matter  which  is  the  gist  of  the  action  v.ill  suf- 
Ijce.(w)  A  general  charge  ought  to  be  answered  in  every  part, 
but  it  is  said  to  be  sufficient  to  answer  a  collateral  issue  in  the 


(n)  1  Lev.  184.     Latch.  125.  (rj)  2  East,  88. 

(o)  Co.   Lit.  303.   a.        Com.   Dig.  (;■)  1  Stra.  .303.      1  Saund.  28.  n.  J. 

Pleader,  E.  1.  3fi.     1  Saund.  28.  n.  1,  ace.  but  see  2  B.  8o  P.  42r. 

2,  3.     2  B.  &  P.  427.     3  M.  k  P.  174.  (s)  I  Saund.  28.  n.  1,  2,  3.  296.  n.  1. 

(/))  I  Saund.  28.  n.  1,  2,  3.  Willes,  Willes,  55.     See  post. 

iSO.     1  H.   Bl.  645.     1   B.  &  P.  411.  (<)  1  Saund.  296.  n.  1.  8  T.  R.  299. 

However,    at    any    time   during  the  (?/)  1  S.ii-nd.  28.  n.  3.     3  T.  R.  297. 

same   term,   the   plaintifl'  may    ree-  3  Wils.  20.    Com.  Dig.   Pleader,  E.  I. 
tify  his  mistake  by   taking  judgment. 
Stra.  30 J. 


510  OF  PLEAS  IN    BAR. 

U.  Qualities,  words  of  the  plaintiff -.(tO  thus  in  an  action  of  waste  in  cutting 
twenty  trees,  the  defendant  ought  to  plead,  that  he  did  not  cut 
the  said  trees,  or  either  of  them^  or  the  traverse  would  be  too 
large  ;  but  in  debt  on  an  obligation,  that  he  shall  do  no  waste, 
and  the  breach  is  assigned  that  he  cut  twenty  oaks,  it  is  suffi- 
cient to  plead  that  he  did  not  cut  the  said  twenty  oaks,  inodo  et 

^  511  forma  ;('ro)and  a  plea  in  bar  to  an  avowry  *for  rent  for  120/, 
that  the  said  120/.  were  not  due,  without  sayinrj  any  part  there- 
of, is  bad  on  demurrer.C'*;^)  'i'he  points  on  this  subject  will  be 
more  fully  stated,  v»'hen  we  consider  the  nature  of  traverses. 

5(l!y.      Must       3diy.  Every  special  plea  of  justification  slates  circumstances 

confess        tlie        ,./.,•  ,        r  -    •         i       r  1  •  1 

fac(s  pleaded  which  either  excuse  the  lact  coiupiained  ot,  or  shew  it  to  be 
lawful  ;  it  must  therefore  admit  or  confess  such  fact,  otherwise 
it  is  not  a  justification,  but  a  denial  of  the  fact,  and  amounts  to 
the  general  issue  ;(.r)  and  therefore  in  trespass,  for  an  assault 
and  battery,  where  the  defendant  pleaded  that  he  was  riding  a 
horse  in  the  king's  highway,  and  that  his  horse,  being  fright- 
ened, ran  away  with  him,  and  tliat  the  plaintiff  was  desired  to  go 
out  of  the  way  and  did  not,  and  the  horse  ran  upon  the  plain- 
tiff, against  the  defendant's  v/iil :  on  demurrer  the  plaintiff  had 
judgment,  because  the  defendant  had  assumed  to  justify  the 
battery,  and  yet  had  not  confessed  that  which  amounted  to  a 
battery  by  himself;  for  if  the  horse  ran  away  against  the  will 
of  the  rider,  it  could  not  be  said,  with  any  colour  of  reason,  to 
be  a  battery  in  the  rider,  and  it  was  admitted  by  the  court  that 
if  the  defendant  had  pleaded  not  guilty,  this  matter  might  have 
acquitted  him  upon  evidence. (f,-) 

4ilily.     Must       4thly.  Every  plea  must  in  general  be  single,  and  if  it  contain 

be  single.  „        .       '  , 

two  matters,  cither  of  which  woulu  bar  the  action,  and  require 

severe!  answers,  it  will  in   general   be  subject  to  a  special  de- 

^    512  murrer  for  duplicity;  as  if  several  outlawries,    *or  if  moderate 

correction  and  a  release,  8<c.  be  stated  in  one  plea,  as  either  of 

these  would  defeat  the  action,  the  plea  would  be  considered 


(7))  Cro.  Eliz.  84.     3  B.  Si  P.  34S.  Carth.  380.     I    Saund.   28.    n.   ami  n. 

Com.  Dig.  rieader,  G.  1.5.  ii.  n.  3. 

(w)  Cm.  Eliz.  84.     Yeiv.  '225.  (»/)  Sivlk.  637.    Ld.  Raym.    S».    3 

(w)  3  B.  k  P.  348.  Wil3.  411. 
(.r)  3  T.   R.  '23S.       1   Salk.  3Q4. 


THEIR  QUALITIES.  512 

double. (2)  But  the  defendant  is  not  precluded  from  introdu-  II-  Qualities. 
cing  several  matters  into  his  plea,  if  they  be  constiiuent  pans 
of  tiie  same  entire  defence,  and  form  one  connected  proposi- 
tion,(a)  or  be  alleged  us  inducement  to,  or  as  a  consequence 
of,  another  fact  ;(6)  thus  in  detinue  at  the  suit  of  a  feme^  the 
defendant  pleaded  that  after  bailment  of  the  goods  to  him  by 
the  plaintiff,  she  married  E  F,  and  that  during  such  marriage, 
£  F  released  to  him  all  actions,  it  was  objected  that  the  plea 
was  double,  viz.  property  in  the  husband  by  the  intermarriage, 
and  a  release  by  him  ;  but  it  was  resolved  not  to  double,  be- 
cause he  could  not  plead  the  release  without  shewing  the  mar- 
riage.(c)  And  at  common  law,  the  defendant  may  plead  to  a 
part  of  the  declaration  one  ground  of  defence,  and  to  another 
part  a  diflerent  ground  :(</)  and  this  in  inferior  courts  not  of 
record,  is  the  only  course  to  be  adopted  ;(<?)  and  at  comnion 
law  one  defendant  may  plead  one  matter  in  bar,  and  the  other 
defendant  another  matter,(./')  or  the  defendant  may  plead  in 
abatement  to  part,  and  in  bar  to  other  part,  and  may  demur  to 
the  residue. (,§•)  The  rule  that  a  plea  must  be  single,  also  pre- 
cludes the  defendant  from  pleading  and  demurring  to  the  same 
fact  the  duplicity  *in  which  case  would  draw  the  matter  to  a  dif-  ^  513 
ferent  inquiry,  the  demurrer  to  be  tried  by  the  court,  and  the 
fact,  by  a  jury  .(A)  So  a  plea  confessing  and  avoiding,  and  also 
tt'aversing  the  same  point,  is  in  the  nature  of  a  double  plea.(z) 
An  executor,  however,  may  and  ought  to  plead  several  judg- 
ments, £cc.  outstanding  ;(y)  and  in  a  plea  uf  set-off  the  defend- 
ant may  rely  on  a  debt  on  record,  and  a  debt  on  siiiiple  con- 
tract, though  one  will  create  an  issue  of  law,  and  the  other  aa 
issue  of  fact.(/<:)     The  statute  of  Ann.  allowing  double  piecis,(/) 


(2)   Co.   Lit.    304.   a.      Bac.    Aljr.  (e)  See  the  form,  1  Saiind.  2D6. 

Pleas,  K.  1,  -1.        Com.  Dig.  Pleader,  (/)  Cora.  Di-.  Pleader,  E.  2. 

E.  '2.     1  Saund.  49,  50.    Plowd.  Com.  (  if)  Ante,  44r. 

140.  a.  (A)  1 1  Co.  5'2.    Bac.  Abr.  Picas,  N. 

(«)  -2  Bl.  Uep.  1022.  1028.     I  Burr.  0)  a  Venti-.  212.     3  M<.d.  318.  Co. 

31fi.  -IS.  Eiit.  oOk 

(6)  Com.  Di-r-  Pleader,  E.  2.  (./)  1  Saund.  .33r.  a. 

(c)  Moor,  25. 1)1.  8.-5.  Dalis,30.  pi.  9.  (k)  1  East,  372. 

(</)   Bae.   Abr.   Pleas,  K.  1.     Co.  (/)  4  Ann.  c.  16. 
Lit.  304.  a. 

Vol.  I.  [  47  ] 


5ia  OF  PLEAS  IN  BAR. 

Tl  Qvulitie!,.  ^^^^  paillcular  ett'cct  oiwliich  av  ill  hereafter  be  considered,  doe  6 
not  appear  to  aid  a  duplicily  in  one  and  the  same  plea,  though 
it  allows  of  difl'erent  grounds  of  defence,  being  stated  in  dif- 
ferent pleas.  Duplicity  must  be  objected  to  by  special  de- 
murrer, and  the  particular  duplicity  must  be  distinctly  pointed 
out.(7«)  and  if  the  plaintilV  do  not  demur  he  must  reply  to 
both  material  parts  of  the  plea.(;0 

Stliiv.  iVlusL  ^^  P'*^^  "^  '^^^''  "^i^^'St  also  be  ccrtain.^o)  Wc  have  already 
beceitsiii.  attempted  to  define  the  difl'erent  degrees  of  certainty  in  plead- 
ing, and  to  shew  the  application  of  each,  and  we  have  seen 
that  it  is  a  general  rule,  that  the  minor  degree  of  certainty, 
viz.  that  to  a  common  intent^  is  sufficient  in  a  plea  in  bar  ;(/i) 
there  however  appear  to  be  some  instances  in  Avhich   greater 

^    ^ ,  .  certainty  is  necessary  in  *a  plea  than  in  a  declaration  ;    thus 

"N   5  i  4 

in   a  declaration  on  a  promise  to  pay  the  debt  of  another  m 

consideration  of  forbearance,  it  is  not  necessary  to  shew  that 
the  promise  was  in  writing,  according  to  the  statute  against 
frauds,  but  it  is  otherwise  in  a  plea.((/)  So  we  have  seen  that 
in  a  declaration,  claiming  a  right  of  way  or  other  easement,  it 
is  sufficient  to  state  that  the  plaintiff  by  virtue  of  his  possession 
of  a  messuage,  &c.  is  entitled  to  such  easement,  without  setting 
forth  the  particulars  of  the  plaintiff's  title  ;  but  in  a  plea  justi- 
fying an  entry  into  land.  Sec.  in  respect  of  such  easement,  it  is 
necessary  to  set  forth  the  right  by  prescription  or  grant,  8cc.(r) 
And  in  trespass  where  the  defendant  justifies  under  a  writ, 
warrant,  precept,  or  any  other  authority  whatever,  he  must  set 
it  forth  particularly  in  his  plea,  and  it  is  not  sufficient  to  allege, 
generally,  that  he  committed  the  act  complained  of  by  virtue 
of  a  certain  writ  or  warrant  directed  to  him,  but  he  must  set 
it  forth  specially,  and  the  defendant  ought  further  to  aver  in 
his  plea,  that  he  has  substantially  pursued  such  authority.(«) 


(?;i)    I    Saund.   JiS".    n.  3.      Doct.  (<?)  I    Sauiid.   270.     Sir  T.  Rajm. 

Plac.   14.7.     Bac.    Abr.   Pleas,  K.    1.  450.     ii  Salk.  519.    2  Saund. '297,  29S. 

Com.  D%.  Pleader,  E.  2.     1  B.  &  P.  Bac-  Abr.    Agreements,   C.   qu.       2 

415,416.  Saund.  180.  b. 

{a)  1  Ventr.  272.  (r)  Ante,  3G5.     3  T.  R.  768.     4  T. 

(o)  Com.  Dig.  Pleader,  E.  5.     C.  R.  719. 

41.  E.  7,  8,  9, 10.  n,per  totam.  («)  Co.  Lit.  283.  a.     I  Saund.  29S 

(/>)  Ante,  237.    Com.  Dig.  Ficadei-,  n.  1. 
E.  7.  C.  17.1  Saund.  49.  n.  1.  346.  n.  2. 


THEIR  QUALITIES.  5^4, 

So  in  a  declaralion  on  a  deed,  wiielber  in  debt  or  covenant  II.  Qrialitieg. 
it  is  sufficient  to  say  testatum  exintit,  but  in  pleas  and  avowries, 
the  deed  being  the  substance  of  tlie  answer,  the  operation  of 
the  deed  or  instrument  must  be  expressly  averred,  and  not 
stated  by  wtiy  of  recital  or  argument ;(?/)  *but  the  missiatement  ^  i^i  ^^ 
will  be  aided  by  verdict  or  general  demurrer,^')  and  where  the 
defendant  states  his  right  only  as  ind.ucemc7it  or  conveyance, 
so  much  certainty  is  not  required  ;  thus  it  is  sufficient  to 
allege  in  a  plea  that  the  defendant  is  /lossessvd  of  a  close,  from 
which  his  cattle  escaped  into  the  plaintiff's  land,  throuj^h  the 
defect  of  a  fence,  which  the  latter  ought  to  have  repaired. (t^) 
In  some  cases  the  law  allows  general  pleading  for  avoiding 
prolixity  and  tediousness  ;(ar)  the  certainly  or  generality  which 
is  inquired  in  pleading  depends  on  the,  nature  of  the  subject 
matter,(j/)  and  this  has  given  rise  to  l^e  distinction  between 
negative  and  affirmative  pleas  ;(r)  if  the  defendant  be  bound  to 
perform  all  the  covenants  of  an  indenture,  if  they  be  all  in  the 
affirmative,  he  miiy  plead  performance  thereof  generally,  and 
is  not  obliged  to  cxliibit  to  the  court  a  performance  of  each  of 
them,  for  this  would  overload  the  proceedings,  when  only  one 
of  the  covenants  might  be  in  controversy  between  liie  par- 
ties ;(a)  but  if  any  be  in  the  negative,  the  defendant  n^.usi.  plead 
specially  to  each  of  tliem,  and  generally  to  the  affirmative  co- 
venants, for  a  negative  cannot  be  performed,  and  we  have  seen 
that  the  plea  of  noii  infregit  conventioncin  is  not  sufiicient,(6) 
though  in  the  latter  case   the   mispleading  v.  ill  "be  aided  on  a  *    516 

general  demurrer  :(c)  so  where  the  covenant  is  to  do  some  act 
of  record,(a')  or  any  matter  of  law,  as  to  convey,  discharge  an 
obligation,  ratify  or  confirm,  kc.  performance  nmst  be  pleaded 
specially,  because  being  a  matter  of  law  to  be  performed,  it 
ought  to  be  exhibited  to  the  court,  who  are  judges  of  the  law, 
to  see  if  it  be  well  performed,  and  not  to  a  jury,  who  are  judges 


{ii)  1  Sannd.  274.  n.  1.    Ld.  Raym.  (w)  Id.  ibid. 

1539.    1  Leon.  24'2.  Com.  Dig-.  Plead-  (:)  Id.  ibiil.     Show.  Pari.  Cas.  97 

tr,  !•:.  3.     Bac.  Abr.  Pleas,  I.  5.  («)  Id.  ibid. 

(r)  Id.  ibid.  {!>)  Id.  iliid.     8  T.  IJ.  I'&o 

{vj)  1  Saund.  346.  n.  2.  (c)  Id.  ibid. 

(.r)    Co.   Lit.  303.  b.      Bac.   Abr.  00  Id,  ibid 
Picas,  I.  3      8  T.  It.  462.     1  B.  k  P, 
6i.j 


516  OF  PLEAS  IN  BAR. 

]I.  qualities,  only  of  the  Tact  ;(e)  and  general  pleading  is  not  allowed  in  ac- 
tions of  slander  ;  and  therefore  where  ^'defendant  pleaded  that 
the  plaintiff  had  been  illegally  connected  with  a  gang  of  swind- 
lers, and  had  been  guilty  of  defrauding  divers  persons,  without 
stating  any  names,  the  plea  was  held  bad  on  demurrer  ;(/)  and 
in  pleas  in  tresp  iss  in  particular,  the  facts  justifying  every  part 
of  the  matter  which  the  plea  professes  to  answer,  must  be  sta- 
ted with  great  precision,  as  if  a  nvounding  be  justified  under  a 
latitat^  the  attempt  to  rescue,  or  other  resistance,  must  be  fully 
stated  ;(^)  and  if  an  ofiirer  jusiily  breaking  an  inner  door  of  a 
house,  in  order  to  search  lor  and  arrest  a  party,  it  must  be  al- 
le5;:ed  that  he  demanded  the  key,  or  that  no  one  was  present  of 
whom  such  demand  could  be  made,  and  it  is  not  sufficient  to 
say  that  she  door  was  locked,  so  that  without  breaking  open  the 
same,  the  defendant  could  not  enter,  without  alleging  the  parti- 
cular circumstances  winch  renflered  the  breaking  necessary  :(//) 

*  517  so  in  pleading  *matters  in  excuse  all  the  circumstances  should 
be  shewn  (z)  Necessary  circumstances  will,  however,  in  ge- 
neral be  intended  in  a  plea,  as  if  a  feoffment  be  pleaded,  livery 
need  not  be  alleged,  for  it  shall  be  intendcd,(/(:)  and  it  is  not 
requisite  to  have  so  much  certainty  in  pleading  a  matter  which 
is  only  conveyance  oi-  inducement, (/)  or  for  matter  in  the  ne- 
gative.(m) 

With  regard  to  the  cenaintij  required  in  a  plea  in  the  state- 
ment of  the  thnf  and /^/acf  when  and  where  material  facts  have 
happened,  we  have  already  seen  that  the  lime  and  place  men- 
tioned in  the  declaration  must  be  adhered  to,  unless  it  be  ne- 
cessary for  tiie  defence  to  vary  therefrom. (/?)  Matter  of  dis- 
charge, as  a  release,  Sec.  must  be  shewn  to  have  taken  place 
after  the  trespass,  Scc.(o)  and  at  common  law  in  pleading  pay- 
ment of  a  bond,  &c.  it  was  necessary  to  shew  that  it  was  on 
the  day,  Scc.(//)     Unless  a  particular  place  be  material  to  the 


(e)  Id.  ibid.  (/)  Com.   Dig.    Pleader,  E.  10.     1 

(/)  1  T.  R.  748.  Saund.  346.  n.  '2. 
(5)   1  Saund.  296.   n.   1.     8  T.   R.         {m)  Com.  Dig.  Pleader,  E.  11. 

299.  In)  Ante,  508,  SO'J. 
f     (//)  3B.    Sc   P.   223.      Sed   vide  3         (0)  Plo-.vd.  46. 

Lev.  92.  (/))   Plowd.  104.     Cora.5)ig.  PleatU 

(^■)  liac.  Abr.  Tresi)ass,  I.  er,  E.  G. 
(A)  Cora.  Dig.  Pleader,  E.  9. 


THEIR  QUALITIES.  5I7 

defence,  it  does  not  appear  to  be  necessary  to  state  any  place  //.  QuaUtief. 
where  the  facts  happened  ;  for  though  a  distinction  was  for- 
merly taken  between  a  plea  in  abatement,  and  a  plea  in  bar,  a 
venue  is  now  unnecessary  in  both.(r/)  The  doctrine  of  venues 
was  clearly  and  correctly  stated  by  Eyre,  C.  J.  in  Ilderton  v. 
IldertonXr)  who  said,  "  that  as  defendants  with  respect  to 
"  transitory  matters,  are  obliged  to  lay  the  vemi?  *in  their  picas,  *   518 

*'  in  the  place  laid  in  the  declaration,  and  since  the  statute  4 
"  ^nn,  c.  16.  s.  6.  has  directed  that  the  jury  should  come  de 
"  corfiore  covntatus,  the  law  of  venues  will  be  found  to  be  very 
"  substantially  altered,  and  to  lie  in  a  narrow  compass  ;  and 
"  the  distinction  between  laying  no  ve?iue  at  all  in  a  plea,  and 
"  being  obliged  to  lay  the  same  venue  as  in  the  declaration,  will 
"  Be  a  distinction  without  a  difference  ;  and  the  principle  now 
"  is,  that  the  place  laid  in  the  declaration  draws  to  it  the  trial 
"  of  every  thing  that  is  transitory,  and  it  should  seem  that 
*'  neither  forms  of  pleading  nor  ancient  rules  of  pleading  es- 
"  tablished  on  a  different  principle,  ought  now  to  prevail. "(*) 

6th.  We  have  already  seen  that  pleading  is  a  statement  of  Ctljly.  Must 
facts,  and  not  a  statement  of  argument ;  it  is  therefore  a  rule,  '^,osi[ive*^*  f nd 
that  a  plea  should  be  direct  and  positive,  and  not  by  way  of  re-   "f'' "igumeut- 

,  ,  .  .  Mtivu. 

hearsal,  reasonmg  or  argument,  which  would  tend  to  create 
unnecessary  prolixity  and  expense,(/f)  and  deeds  and  other 
matters  should  be  pleaded  according  to  their  legal  operation, 
though  differing  from  the  words  ;(w)  thus  li  scire  facias  h& 
brought  against  a  parson  for  the  arrears  of  an  annuity  recover- 
ed against  him,  and  he  plead  that  before  the  writ  brought  he 
had  resigned  into  the  hands  of  the  ordinary,  who  accepted 
thereof,  this  plea  is  argumentative,  for  he  should  have  pleaded 
directly  that  he  was  not  *parson  on  the  day  of  the  writ  brought,  ^    51a 

instead  of  merely  pleading  facts  from  which  that  conclusion  was 
to  be  drawn  -.{v)  so  a  surrender  by  operation  of  law  should  be 
pleaded  as  a  surrender,  and  not  merely  circumstantially ;  thus 


(9)    1  Saund.   8.    n.   2.   ace.     Vin.  31)4.  a.    Com.    Dig;.  Pleader,  E.  3.     6 

Abi-.  Triid,  A.   pi.  20.       Com.   Di;,'.  East,  597.     Hob.  29.i. 

Pleader,  C.  20.     Liitw.  1466.  contr.  {u)  2  Saund.  97.  b.  n.  2.    Bae.  Abi\ 

(r)  2  11.  Bl.  161.  Pleas,  1.7. 

(s)  1  Saund.  8.  n.  2.  (v)   2Andr.  179,  ISO.      Bae.  Abr. 

(0  Ante,    216.      Co.   Lit.  303.  a.  Pleas,  I.  5. 


519  OF  PLEAS  IN  BAR. 

It  Qualities,  if  a  surrender  be  by  acceptance  of  a  new  lease,  it  is  not  suffi- 
cient to  say  that  the  lessee  being  possessed  by  a  former  lease, 
the  lessor  demised  to  him,  but  the  plea  should  be  that  the  les- 
see surrendered,  and  then  that  the  lessor  demised,  or  that  the 
lessor  entered  and  demised. (w)  An  argumentative  plea  is  aid- 
ed after  verdict,  and  upon  a  general  demurrer.(j?)  It  is  saicj 
that  there  is  this  sort  of  affinity  between  an  argumentative  plea, 
snd  a  negative  pregnant,  that  as  the  latter  is  a  negative  preg- 
nant with  an  affirmitive,  so  the  former  is  an  affirmative  pregnant 
with  a  negative,  and  that  the  cure  for  both  is  in  most  cases  to 
add  or  at  least  to  substitute  a  direct  denial  of  the  substunce  and 
gist  of  the  declaration  or  pica  which  is  to  be  answered,(j/) 
7th]y.  Must        7thly.  Every  plea  should  be  so   pleaded   as  to  be  cuftablc  of 

xi-vl'!^^  "*  trial,  and,  therefore,  must  consist  of  matter  of  fact,  the  ex- 
istc7icc  of  which  may  be  tried  by  a  7 wrj/  on  an  issue,  or  its  suffi.- 
ciency  as  a  defence  may  be  determined  by  tlie  court  upon  de- 
murrer ;  or  of  matter  of  record,  which  is  triable  by  the  record 
itself  ;(x)  and  if  fact  be  improperly  complicated  with  matter  of 
law,  so  that  it  cannot  be  tried  by  the  court  or  jury,  the  plea  is 

*  520  *bad,  as  if  the  defendant  plead  that  Alavjfully  enjoyed  the  goods 
of  felons,  it  will  be  bad,  for  the  jury  cannot  determine  whether 
he  lawfully  enjoyed,  nor  the  court  whether  he  mfact  enjoyed,  and 
the  plea  should  have  stated  the  particular  facts  and  title  by  virtue 
of  which  ^  did  enjoy. (a)  So  if  the  condition  of  a  bond  be  that 
he  will  shew  a  sufficient  discharge  of  an  annuity,  it  is  bad  if  he 
plead  that  he  shewed  a  sufficient  discharge  ;  for  the  jury  cannot 
try  whether  it  is  sufficient,  and  he  ought  to  have  shewn  what 
discharge  he  gave  in  order  that  the  court  might  judge  whether 
it  was  suffi.cient  ;(A)  but  where  the  effect  of  the  words  repre- 
sent a  matter  triable,  it  is  sufficient,  though  according  to  the 
precise  words  it  be  not  triul)le,  as  in  covenant  for  quiet  enjoy- 
ment, free  from  arrears  of  rent,  a  pica  that  he  delivered  mo- 
ney to  the  piaintilT  with  intent  that  he  should  therewith  dis- 
charge the  arrears,  will  be  sufficient  though  the  intent  is  not 


(w)  Com.  Dig.  SuiTL-nder,  N.  (;)    Co.    Lit.   303.   b.      Com.  Dig. 

{x)  Com.  Dig.  Pleader,  E.  3.     Al-  Pleader,  E.  34.     9  Co.  24.  b.  25.  a. 

leyn,  48.     2  Saund.  319.  n.  fi.  (a)  9  Co.  25. 

( j^)  3  Keeve's  Hist. -135.   Eac.  Abr.  {b)   9  Co.  15.  a.  et  vide    6  P'ust, 

Pleas,  I.  G,  561,  562. 


THEIR  QUALITIES.  ~  52Q 

triable,  for  it  is  equivalent  to  the  allegation   that  the  defendant  //.  Qualities. 
delivered  the  money  to  pay.(f)     A  defect  in  this  respect  in  a 
plea  may   be   aided    by   the    plaintiff's    taking  issue,  upon   a 
triable   point,  but  if  he  should  take  issue  upon  an  immaterial 
matter,  it  might  be  necessary  to  award  a  repleader. 

Sthly.  Every  plea  should  be  true  and  capable  of  proof,  for  as     8thly.  Must 
it  has  been  quaintly  said,  truth  is  the  goodness  and  virtue  of    ^  '"^" 
pleading,  as  certainty  is  the  grace  and  beauty  of  it,  and  if  it 
appear  judicially  to  the  court  on  the  defendant's  own  shewing 
that  he  hath  pleaded  a  false  plea,  *this  is  a  good  cause  of  de-  ^   591 

murrer;(rf)  as  where  the  defendant  pleaded  to  debt  upon  bond 
conditioned  for  performance  of  covenants  contained  in  an  in- 
denture, which  he  pleads  with  a  profcrt^  that  there  were  no 
covenants  contained  in  the  indenture,  and  upon  oyer  by  the 
plaintiff,  it  appeared  that  the  deed  did  contain  divers  covenants 
on  the  part  of  the  defendant,  the  plea  on  demurrer  was  held 
insufficient. (y)  Sham  pleading  was,  as  we  have  already  seen, 
formerly  considered  a  very  culpable  abuse  of  the  justice  of  the 
court,  and  was  set  aside  with  costs,  and  the  parties  concerned 
in  it  were  censured  and  othei'wise  punished  according  to  the 
discretion  of  the  court ;(  g)  by  the  modern  practice,  however, 
many  false  or  sham  pleas,  though  they  delay  the  cause,  are 
allowed,  but  they  are  not  encouraged. (A) 


The  rules  which  prevail  in  the  construction  and  allowance  of  Pules  of  con. 

,       .     ,  ,         rT>.       •    •  I  1  .     .  struction,  &c. 

a  plea  m  bar  are,  1st.  Ihat  it  is  to  be  construed  most  strong- 
ly ag'.iinst  the  defendant;  2dly.  That  a  general  plea  if  bad  in 
part,  is  bad  for  the  whole  ;  and,  3dly.  That  surplusage  will  not 
in  general  vitiate. 

1st.  As  it  is  a  natural  presumption  that  the  party  pleading  1st.  Constmc- 
wiU, state    his  case  as  favourably  for  himself  as  possible,  and  the  plea, 
that  if  he  do  not  state  it  with  all  its  legal  circumstances  it  is 


(c)  4  Mod.  249.  (5)   Ante,  505.     Bac.  Abr.  Pleas, 

{(l)  Hob    295.      Bac.    Abr.   Picas,  G.  4.     2  Wils.  304. 

G.  4.    Cauipb.   N.  P.  17G.    2  Wils.  {h)  Ante,  505     Campb.  X.  P.  176. 

394.  Salk,  517. 
(/)  I  Saund.  316,  317       I  Saund. 

9.  b.  n.  1. 


521  OF  PLEAS  IN  BAR. 

Ruku  of  coil'  not  in  fact  favourable  to  him,  it  is  a  rule  of  construction  that  u 
v^  C99  pltja  which  *has  two  intendments  shall  be  taken  most  strongly 
against  the  defendant  ;0')  therefore,  in  trespass  if  the  defend- 
ant plead  a  release  without  saying  at  what  time  it  was  made, 
it  shall  be  intended  to  have  been  made  before  the  trespass  was 
committed  ',{k)  so  at  common  law  if  to  a  bond  the  defendant 
plead  payment,  it  sluill  be  intended  to  have  been  made  after 
the  day  appointed  for  payment,  if  he  do  not  aver  it  to  be  other- 
wise ;  and  in  pleading  a  promise  by  a  third  person  to  pay  the 
debt  of  another,  it  must  be  slated  to  have  been  in  writing. (/) 
But  this  intendment  in  construction  does  not  obtain  where  it 
would  be  inconsistent  with  another  part  of  the  plea  ;(w)  and 
there  are  some  cases  in  which  matters  are  implied  in  favour  of 
the  plea  ;  thus  it  is  said  by  Lord  Coke^  that  all  necessary  cir- 
cumstances implied  by  law  need  not  be  expressed,  as  in  the 
plea  of  a  feoffment  of  a  manor,  livery  and  attornment,  are  im- 
plied \{n)  so  where  it  is  pleaded  that  land  was  assigned  for 
dower,  it  is  not  necessary  to  say  it  was  by  metes  and  bounds, 
for  it  shall  be  intend-.-d  a  lawful  assignment,  which  is  by  metes 
and  bounds  ;(g)  and  where  a  surrender  of  a  lease  for  years  is 
pleaded,  and  that  it  was  agreed  to  by  the  lessor,  it  is  not  ne- 
cessary to  say  that  he  entered,  for  it  shall  be  intended,  and  it  is 
not  usual  to  plead  a  re-entry  upon  a  surrender,  any  more  than 
it  is  to  plead  livery  upon  a  feoffment  :(/0  so  where  it  is  plead- 
*"    523  ed  tliat  a   sheriff  made   *his  warrant,  it  is  unnecessary  to   say 

that  it  was  under  his  seal,  for  it  could  not  be  his  warrant  if  it 
were  not.(^)  So  if  a  man  pleads  that  he  is  heir  to  Ay  he  need 
not  say  either  that  A  is  dead,  or  had  no  son.^r) 
'2dly.  Bad  in  2dly.  If  an  entire  plea  be  bad  xt\  part,  it  is  insufficient  for  the 
wiiole.  '' '  '  whole. (s)  We  have  already  in  part  considered  this  doctrine  in 
considering  that  a  plea  must  contain  an  answer  to  all  it  assumes 


(i)  Com.  D;-.  Pleailei",  E.  C.      Co.  (0)  Com.  Dig.  Pleader,  E.  9. 

Lit.  303.  b.     riowc'..  29.  &c  4G.    Aiile,  (/>)  Ci-o.  Car.  101. 

'241,242.  ((/)  Ci-o.  Eliz.  53.     Palm.  357.  S.  P. 

{!c)  P[o\^t].  46.  (r)  Ual.  6r.       1  Leon.  1S4.  c.  7.     2 

{I)  Ante,  30.5.     1  Saurul.  275.  a.  Saund.  505.  b.  n.  13. 

(?n)  10  Co.  59.  b.     Ante,  241.  (s)   C.  D.  Pleader,  E.  36.     3  T.  R. 

00  Co.  Lit.   303.  b.  S.  P.      Cro.  376.     3  B.  &c  P.  174.      1  Saund.  337- 

Eliz.  401.  n.  1.    Cgv-'p.  133. 


THEIR  QUALITIES,  See.  523 

to  answcr.c^)     In  assumpsit  on   several  proniiseci   in  ctitrcreat  Jfvirt  of  cnn- 
.      ,  ,    ,  ^  ,.      .       .  ,       strvcuoiiy^j::-  ■ 

counts,  if  the  defendant  plead  the  statute  ot  limuiUions  to  the 
whole,  and  il  is  a  bad  plea  as  to  one  of  the  counts,  it  will  also 
be  insufficient  as  to  the  residue, (u)  and  in  an  action  against  an 
executor  or  administrator  if  the  defendant  plead  several  judg- 
ments, recovered  against  himself  in  that  character,  and  that  he 
has  not  sufficient  to  satisfy  them,  if  the  plea  be  bad,  or  false,  or 
avoided,  as  to  one  of  the  judgments,  it  will  be  bad  for  the 
W'hole ;  but  if  the  judgments  pleaded  had  been  against  the 
testator,  it  would  be  otherwise. (tO  In  one  Case,  however,  it 
was  held  that  if  one  of  the  judgments  pleaded  Avas  against  the 
testator  and  a  third  person,  and  the  defendant  does  not  shew 
that  the  testator  survived,  without  which  tlie  executor  is  not 
chargeable,  the  plea  is  bad  for  the  whole  ;(w)  but  the  proprie- 
ty of  this  decision  was  questioned  by  Lord  V(titghaJi.{x)  *So  if  *  524 
several  persons  join  in  one  plea,  if  it  be  bad  for  one,  it  is  also 
bad  for  the  others  \{y)  the  extent  of  this  rule  A".ill  be  consider- 
ed under  the  head  of  pleading  by  several  defendants. (t)  I'he 
statement  of  several  debts  in  a  plea  of  sct-oif  is  an  exception, 
and  if  one  of  such  debts  be  insufiicicnt,  the  pluiniitV  must  not 
demur  generally. («) 

3dly.  The  rules  with  regard  to  surplusage  and  unnecessary  ,^<Hy.  Sm-pl'i-s- 
ailcgations  in  a  declaration  also  prevail  in  general  with  respect  pu^„a^c•,^  '^ 
to  pleas  and  every  other  part  of  pleading  •,{b)  and  if  either 
party,  plaintiff  or  defendant,  allege  more  than  is  necessary  to 
introduce  new  matter,  repugnant  and  contradictory  to  what 
went  before,  in  any  point  not  viatcriul.,  this  will  not  vitiate  the 
pleadings,  according  to  the  maxim,  utile  jier  inutiit- non  viiia- 
tur  i  and  such  redundant  or  repugnant  part  shall  be  rejected, 
especially  after  a  verdict. (c)  Thus  if  the  defendant  in  reple- 
vin make  conusance  as  bailiff'  to  J,  administrator  of  B,  where 
./  might  have  distrained  in  his  own  right,  the  words   "  admi- 


(/)  Ante,  509.            "  (?')  :■>  T.  R.  377. 

\u)  1  Lev.  48.  (:)  Post.     I  Sauiid.  '2S.  n.  2. 

(r)  1  Saund.   357.  b.  ?  T.  R.   80.         («)  -2  HI.  Kep.  910. 

.(•7.  ih)   Ar.te,   '2,>2— 2^4. 

(7p)  2  Saund.  50,  51.  n.  4.    1  Saund.         (f)  llac.  Abr.  Picas,  I.  4.     Com 

337.  n.  1.  •      Di;,'.  Pleader,  E.  12.    Co/Lit.  .30.3.  b. 

(.r)  1  Saund.  337.  a.  2  Sauud.  .'505,  ."OG.  n.  1  i.  id-  291. 

Vol.  I.  [  -^8  ] 


524  OF  PLEAS  IN  BAR. 

livles  of  con-  "  iiistrator  of  B,"  shall  be  I'ejected  as  ^urplusage.(rf)  There 
'  is,  however,  considerable  danger  in  surplusage  in  the  state- 
ment of  material  matter  ;  for  where  a  parly  takes  upon 
himself  to  state  in  any  pleading  a  substantive  averment, 
or  alleges  a  precise  estate,  which  he  is  not  bound  to  do, 
if   they   be  material  and  bear  on  the  question,  he    gives  the 

'^'  5^5  other  side  the  Hdvaniage  of  traversing  it ;  thus  in  *Leake'* 
case,(d')  it  was  necessary  that  the  plaintiff  should  shew 
that  !ie  had  some  right  to  put  his  cattle  into  the  close  against 
wiuch  the  cUfendunt  was  ijouiid  to  repair  the  fence,  but  a  semn 
in  fee  was  not  necessary  to  give  that  right  for  a  term  for  life, 
or  years,  or  even  an  estate  at  will,  or  right  of  common,  or  the 
owner's  license  would  have  conferred  that  right ;(/")  the  plain- 
tiff", however,  thought  proper  to  allege,  that  the  right  he  had 
arose  from  a  stisin  infee^  therefore  the  defendant  was  at  liber- 
ty to  deny  that  right,  as  much  as  any  other  right  which  the 
plaintiff  might  have  had  to  put  his  cattle  into  the  close.  So 
in  another  cisejrg-)  the  ground  of  the  plaintiff's  action  was, 
that  the  defendant  would  not  permit  him  to  cut  down  the  re- 
piaining  200  trees.  In  order  to  shew  that  so  many  trees  were 
left  standing  in  the  wood,  he  staled,  that  at  the  time  of  the 
agreement  he  had  cut  down  only  800  trees,  and  though  it  was  not 
necessary  for  him  to  have  stated  that  precise  number,  but  having 
done  so,  and  the  number  that  was  left  being  material  to  shew 
the  damage  winch  the  plaintiff  had  sustained  by  the  defend- 
ant's refusal  to  permit  him  to  cut  them  down,  he  gave  the 
defendant  an  advantage  of  traversing  it.(^)  It  seems,  there- 
fore, that  a  too  precise  or  particular  statement  of  material 
matter  may  be  taken  advj^ntage  of  upon  the  tiial  of  a  traverse 
thereof,  but  in  general  not  by  demurrer,  as  the  objection  does 

*  526  ■  ^lot  appear  upon  the  record,  but  depends  upon  the  *evidence, 
except  where  it  is  repugnantor  contrary  to  matter  precedent,CO 
and  though  such  repugnancy  may  not,  in  some  cases,  be  aided 


(f/)    Hob.  208.  (^0  Ydv.  195. 

(e)  Dyer,  365.     2  Saund.  206.  a.  ii.         (A)  2  Sauml.  207.  n.  24.  206.  n.  22. 
21,  22.  n.  24.  2  East,  452. 

(  /■)  1  Saund.  346.  n.  2.  (?)  Co.  I.it.  ."03.  b. 


THEIR  FORM  AND  PARTS,  526 

tiy  Verdict,(^')  yet  if  it  appear  that  a  verdict  was  given  on  ano-  nvjea  of  con- 
ther  part  of  the  plea,  the  mistake  will  be  aided.(A-)  "tnmhn,  ^c. 


III  OF  THE  FORMS  AJ^'D  PARTS  OF  PLEAS  IjY  BAR. 

The  forms  of  the  various  pleas  in  bar,  which  usually  occur 
in  practice  in  particular  actions,  are  given  in  the  following 
volume,  but  there  are  some  rules  which  govern  the  structure 
of  picas  in  general,  which  it  may  be  advisable  here  to  inquire 
into.  The  parts  of  a  pica  in  bar  may  be  considered  with  re- 
ference to 

'1st.  The  title  of  the  court  in  which  it  is  pleaded. 
2dly.  The  title  of  the  term. 
3dly.  The  names  of  the  parties  in  the  margin. 
4thly.  The  commencement ;  which  includes  the  statement  of 

1st.  The  name  of  the  defendant  ; 

2dly.  The  appearajice  ; 

3dly.  The  defence  ; 

4thly.  The  actio-ron.,  being  either  a  general  or  par«- 
tial  denial  of  the  right  of  action. 
othly.  The  body  :  which  may  contain 

1st.  Inducement. 

2dly.  Protestation. 

odly.  The  ground  of  defence- 

4thly.  Qtix  est  eadan. 

5thly.  Ti averse. 
6thly.  The  conclusion. 

•These  will  appear  fram  the  following  form ;  *  527 

In  the  King's  Bench. 

„     _  Michaelmas  TerrriK  49  Geo.  III. 

ads.  LAnd  the  said  Richard.,  by  E  F.,  his  attorney,  (or  "in  his  ^ 
jDae  J  ••  own  piopcr  person,")   cornea   and  defends   the  wrong, 
(or,  in  trespass,  '  •  force,")  and  injury,  tuhen.,  &c.  and  says,  that  the 
said  John  ought  not  to  have  or  maintain  his  aforesaid  action 


(./)  Bar.  Abr.  Pleas  T.  i.  (l-)  Id.  ibid. 


527  OF  PLEAS  IN   BAR. 

III.  Form        (hereof  ugaiasv  Iiini,  because  lie  says  tliEit,  Jkc.  {here  foilowa  the 
and  partj. 

gVijiLnd  of  defence,  cnid  occasionally  a/i  inducement.^  pro( e station .^ 

or  travcrae  is  inserted,  and  the  plea  then  concludes^  if  to  the  conn- 
try,  as  follows  ;)  And  of  this  lie,  the  said  Richard,  puts  himself 
upon  the  couniry,  Sec.  or  if  the  conclusion  be  with  a  veiifi- 
cution,  the  form  is  thus :  "  and  this  he,  the  said  Richard,  is 
"  ready  to  verify,  wherefore  he  prays  judgment  if  the  said  John 
".ouglitto  have  or  maiiituin  his  aforesaid  action  thereof  against 
'«  him,"  Sec. 
Isi.  Title  of  It  is  usual,  at  the  head  of  the  plea,  to  state  in  ivhat  court 
the  coiui.  jj.  jg  pleaded,  as  ''in  the  King's  Bench,"  or,  "  in  the  Common 
"  Picas,"  or  "in  the  Exchequer,"  8cc.(6)  But  it  is  apprehend- 
ed that  the  omission  would  not  be  material,  and  that  the  plea 
would  be  consitlcrcd  as  having  reference  to  the  declaration, 
which  must  necessarily  have  been  in  the  same  court  as  the 
plea. 
Qdly-  Title  of  With  respect  to  the  title  of  the  term,{c)  pleas  to  *the  juris- 
diction, or  in  abatement,  must,  as  we  have  seen,  in  general  be 
entitled  of  the  same  term  as  the  declaration  ;(f/)but  pleas  in  bar 
may  be,  and  usually  are  entitled  of  the  term  of  which  they  are 
pleaded,  which  is  frequently  subsequent  to  that  of  which  the 
declaration  is  entitled, (f)  and  where  matter  of  defence  has 
arisen  after  the  first  day  of  the  term,  the  plea  should  be  enti- 
tled speciiilly  of  a  subsequent  day.(y) 
3(Ily.  Tlio  The  names  of  the  Jtarties  i?i  the  margin  do  not  strictly  consti- 
tute any  part  of  the  plea.  The  surnames  only  are  usually  in- 
serted, and  that  of  the  defendant  precedes  the  plaintiff's,  as 
"  Roe  ads.  Doe"(  jf)  They  should  correspond  with  the 
names  in  the  declaration,  or  if  the  defendant  plead  in  abate- 
ment or  bar,  by  another  name  to  that  in  the  declaration,  the 
difierence  should  be  specified  in  the  margin,  thus,  "  C  D,  sued 
"  by  the  name  of  £  D,  ads.  ^i  BJ\h)  It  has  been  recently  de- 
cided, that  it  is  sufficient  in  a  qui  ta-in  iiCiion  to  entitle  the  plea 


term. 

*  528 


names  of   the 
parties 


(6)  See  the  forms,  post,  vol. '2.  405.  (/)   Post,   vol.  1.   421.     And   see 

409.  411.  also   a   suggestion  after   Imparlance, 

(c)  See  the  forms,  post,  vol.  iJ.  405.  post,  vol.  2.  406,   407. 

40y.  411.  {g)  Post,  vol.  2.  409. 

(,/)  Ante.  4.:r,  448.                ■  {h)  Post,  vol.  2.  410.  416,  417. 

(e)  Bac.  Abr.  Piea.s,  C.  2.  2  Saimd. 
•1.  f.  2.  a.  h.  «■-(!. 


THEIR  FORM  AND  PARTS.  52S 

of  nil  debet  with  the  names  of  the  parties  as  above,  without  the  ///.  Form 
udclition  oi  qui  tam^  &c.  to  the  plaintiff's  nanie.(/)  "'"  parts. 

\Vith  respect  to  the  commencement^  and  first  the  name  of  the      4thly.    The 
defendant,  we  have  ah'eady  seen  that  when  the  defendant  pleads  mcut.  "  *"* 
misnomer  in  al)atement,  a  plea  commencing  with  the  words, 
"  And  the  aaid  Richard  sued  by  the  name  of  Robert"  or  thus, 
"  and  he  against  whom  the  *plaintiff  hath  exhibited  his  hill  by  ,       *    529 
the  name  of  J  S,  Sec.  is  insuf!icient."(7)  A  plea  in  bar  also  com- 
mencing in  the  same  manner,  would  be  bad  on  demurrer,(Xr) 
and  therefore  when  the  defendant  is  sued  by  a  wrong  name,  and 
^vishcs  to  defend  in  his  riglit  name,  his  plea  should  begin  thus  : 
"  And  C  jD,  against  whom   the   said  ^  B   hath  exhibited  his 
"  bill  by  the  name  of  E  D,  comes  and  defends  the  wrong  and 
"  injury  when,"  SccC/) 

After  the  names  of  the  parties  in  the  margin,  the  defend- 
ant's afifiearance  and  defence  {venit  et  defcndit  vim  et  injuricuii) 
arc  to  be  stated  ;  some  observations  have  already  been  made  on 
these  parts  of  pleading. C/'^)  The  appearance  may  in  general 
be  stated  to  have  been  made  eitlier  in  jierson  or  by  attorney.^  for 
a  defendant  is  still  at  liberty  to  appear  and  defend  in  person, 
and  this  is  usual  in  an  action  against  an  attorney  or  prisoner  ;(n) 
and  as  ^fcme  covert  when  sued  alone,  is  incapable  of  appoint- 
ing an  attorney,  she  should  defend  in  person  ;(o)  an  idiot  also 
should  appear  in  person,  and  it  is  said  tliat  any  one  who  can 
make  a  better  defence,  shall  be  admitted  to  defend  for  him  ; 
but  a  lunatic,  or  one  who  becomes  7ion  compos  mentis^  must  ap- 
pear by  guardian,  if  he  be  within  age,  and  by  attorney  if  of  full 
*age.(/0  An  infant  must  plead  by  guardian,  and  not  by  at-  ^  539 
torney  ov  firochein  a?}iy,{q)  and  if  he,  wliether  in  the  case  of  a 
sole  or  several  defendants,  plead  by  attorney,  it  would  be  er- 
ror,(r)  and  therefore  the  plaintifl'  must  take  out  a  summons  to 


(/)  7  Easi,  333.     Post,  vol.  2.  4.>9.  41'2.     See  the  form,  post,  vol.  2.  409. 

I  J)  Anlf,  411,   4l'2.     Post,  vol.  id.  4'25. 
410.     5  T.  II.  487.     8  T.  R.  515.  (/>)  Id.  ibid.  4  Co.  \-2<.  b.     2  Saund. 

(^•)  3  Wils.  4i.5.  33.'5.  n.  4.  335.   Bac.  Abr.  Idiots  aud 

(/)  Post,  \ .  1.  2.  410.  3  Wentw.  210.  Luiuitics. 

(w)  Ante,  413  to  4l4.  {q)  Ante,  412.     2  Saund.  117.  b.  i\. 

(w)  Sayer,  217.  1.  95,  96.  n.  2.     Post,  vol.  2.  410.  42  i 

(0)  Co.   Lit.   125.  b.     2  lust.   .390.         (;)  2  SaHUfJ.  212.  n.  4 
F.  N.  B.  27.     2  SuKHd.  209.  c.     Ante, 


530  <^>F  PLEAS  IN  BAR. 

J II.  Form  compel  him  to  appear  by  guardian,  and  to  alter  his  plea,  or  for 
leave  to  do  it  for  him.(.v)  A  plea  by  a  corporation  aggregate, 
■which  is  incapable  of  a  personal  appearance,  must  purport  to 
be  by  attorney  a')  In  a  plea  by  husband  and  wife,  it  is  stated 
that  they  appear  by  their  attorney .(«)  The  plea  should  also  be  in 
the  name  of  an  attorney  of  the  proper  court  ;(f )  but  though  the 
appeurance  has  been  entered  in  the  name  of  an  agent  to  a  country 
allorney,  the  plea  may  be  in  the  name  of  the  principal  attor- 
ney •,{%v)  it  ought  not,  however,  where  there  are  several  attor- 
niesin  partnership,  to  be  in  the  name  of  the  firm,  but  only  in 
the  nanie  of  one  of  them.(jr)  We  have  already  stated  the 
signification  of  the  term  defence^  its  nature,  and  the  form  of 
it  in  a  plea  in  bar.(i/)  Eveiy  plea  in  bar  should  begin  with  the 
rfeftnce;(-)  and  it  should  seem  that  if  the  defendant  plead 
only  to  part,  and  confess  the  residue,  the  defence  should  be 

*  531  confined  to  the  *part  intended  to  be  pleaded  to,  and  not  cover 
the  whole. ('i) 

In  a  plea  of  the  general  issue,  or  other  plea  in  bar  to  the 
whole  declaration,  which  merely  denies  what  is  alleged  in  the 
declaration,  and  does  not  introduce  any  new  matter,  it  is  not 
usual  to  insert  the  allegation,  •'  that  the  plaintitf  ought  not  to 
«'  have  or  maintain  his  aforesaid  action  against  the  defendant," 
but  after  stating  the  defendant's  appearance,  and  his  defence  ; 
the  plea  immediately  denies  the  matter  stated  in  the  declara- 
tion, and  concludes  to  the  country. (/i)  But  special  pleas,  after 
stating  the  appearance  and  defence,  begin  with  this  aliegaiion, 
actio  non  habere  debet^c)  which  always  alludes  to  the  com- 
mencement of  the  action,  and  not  to  the  time  of  the  plea.(c?) 
In  debt  on  a  bond,  if  the  defendant,  by  his  plea,  deny  tlie  vali-  . 
dity  of  the  deed,  or  if  an  heir  plead  rien  Jier  descent,  the  defend- 


(s)  2  Wils.  50.    2  Saiind.  117.  f.  3  Lev.  240.    Com.  Dig.  Abatement,  I. 

(t)  Bro.  Abr.  Corporation,  28.    Co.  16. 

Lit.  66.  b.     Com.  Dig.   Pleader,  2  B.  (z)  Com.  Dig.  Pleader,  E.    27.     3 

2.  B.  k  P.  9.  a.    Co.  Lit.  i'-'7.  b.    Ante, 

(m)  2  Saiiiul.  219.  Cora.  Dig.  Plead-  412  to  4l4. 

er,  2  A.    Post,  vol.  2.  409.  (a)  T.om.  Dig.  Pleade,-,  E.  27. 

(t»)  Barnes,  259.  (6)  Salk.  516.    see  the  form,    post, 

(xr)  3  B.  k  P.  111.    Barnes,  239.  vol.  2.  42,3. 

(x)  4  East,  195.  (c)  Salk  211.     Po<;t,  vol.  2.  421. 

ly)  Ante,  412.     And  see  fiullier,  {d)  3  T.  R.  IS6.     4  East,  502, 


THEIR  FORM  AND  PARTS.  531 

ant  should  say  onerari  non  debet,  and  not  actio  non,fe\  and  in  this  ^JT.  Form 
•       •II         •!        •        1       •  •  •  and  partt. 

case  the  pica  should  describe  the  deed  as  a  ivnting,  or  sup- 
posed writing  obligatory,  and  should  not  admit  that  it  is  a 
deed.(y)  In  replevin,  if  the  defendant  say  he  avcU  avows.,  in- 
stead of  well  acknowledge.^  the  caption,  no  objection  can  be  ta- 
ken.(g")  When  the  matter  of  defence  arose  before  the  com- 
mencement of  the  suit,  actio  non,  &c.  is  generally  the  proper 
commencement ;  but  no  matter  *of  defence  arising  after  action  *  532 
brought,  can  properly  be  pleaded  generally,  but  ought  to  be 
pleaded  in  bar  of  ihc  further  maintenance  of  the  suit,(/!)  and  if 
the  matter  of  defence  arise  after  issue  joined,  it  must  be  plead'-- 
ed  /mis  darrein  coniinuance,(i)  and  if  it  arise  after  trial,  an  audi- 
ta querela  is  the  only  remedy.  In  an  action  against  husband 
and  wife,  both  must  defend  and  join  in  the  plea,  or  the  plaintiff 
should  demur,  or  there  should  be  a  repleader,  although  the  ac- 
tion be  merely  for  the  tort  of  the  \vife.(^')  Where  the  plea  is 
only  to  a  part  of  the  declaration,  it  must  not  cover  the  whole  de- 
claration, but  must  ascertain  the  part  to  which  it  is  applied,  or 
the  plaintiff  may  demur  ;(A-)  thus  in  assumpsit  on  several  pro- 
mises, if  the  defendant  plead  quoad,  all  except  4/.  non  as.sump.' 
sit,  and  a  tender  of  the  4/.  and  does  not  shew  as  to  which  pro- 
mise the  tender  was  made,  it  is  insufficient ;(/)  so  in  dei^t  for 
rent  against  the  assignee  of  a  term,  if  he  plead  nil  debet,  as  to 
20/.  part  of  the  rent,  and  as  to  the  residue  that  he  assigned 
over  the  term,  he  must  shew  when  the  20/.  became  due.(w) 
The  mode  of  pleading  in  these  cases  is  thus  :  "  And  the 
"  said  C  Z>,  by  J''.  7-',  his  attorney,  comes  and  defends  the 
'■'  wrong  and  injury,  when,  &c.  and  as  to  the  said  first  count  of 
"  the   said    declaration,"   or  if  in    covenant,   "  as   to   the  said  ^    rn<> 

''  supposed  breach  of  covenant  first  above  assigned,"  or  if  in 
ircsjiass,  "  as  to  the  breaking  and  entering,"  &c.  (enumerating 
the  particular  trespasses  mentioned  in  the  declaration,  and  in- 


(e)  2  Saund.  290.  n.  .3.     L<1.  Itaym.  {h)  4  East,  502.      I'ost,  vol.  2.  421. 

217.     2Salk.  51G.     Post,   vol.  2.  4G2.  (/)  M.  ibid.     Post,  vol.  2.  CrC,  677. 

n.  r.  (.;■)   Com.   Dig.   Pleader,    2  A.    e. 

(/)   1  Saund.   290.  n.  3.  291.  n.  I.  do.  Jac.  2SS. 

Ld.  Raym.  1541.     2  Roll.  Rep.  140.  {k)  Com.  Dig.  Pleader,  E.  27.     1 

Post,  vol.  2.  4C2.    Com.  Dig.  Pleader,  Sid.  . 338.     Lutw.24l.     B.kP.  174. 

E.  27.  (/)    Lutw.   241.      See   the   proper 

(5-)  Cro.  Jac.  373.     I  Saund.  347.  form,  post,  vol.  2.  431. 

c.  n.  4.  (wi)  1  Sid.  538. 


/ 
533  ^  PLEAS  IN  BAR. 

in.  Form  tended  to  be  justified)  "  l/ie  said  C  D  soya  that  the  mid  A  B 
"'  oiii^iU  not  to  have  or  maintain  hin  aforesaid  action  thereof  against 
hinif  because  he  says  ^/w?,"i7'c.(70  and  a.t  common  law,  before  the 
statute  of  ^^Jin.  which  introduced  several  pleas,  it  was  usual, 
puiticuiurly  in  actions  of  trespass,  for  the  defendant  to  plead  as 
to  the  force  and  arms,  and  whatever  else  is  against  the  peace 
of  the  king,  not  guilty,  and  as  to  the  residue  of  the  supposed 
trespasses,  a  justification. (o)  In  actions  of  trespass  to  person- 
al or  real  property,  containing  several  counts,  varying  tlie  state- 
ment of  the  injury  to  the  same  personal  chattels,  or  the  same 
closes,  it  is  usual,  in  order  to  save  the  expense  of  several  dis- 
tinct pleas  to  each  count,  to  render  the  plea  applicable  to  all 
the  counts  ;  in  this  case  the  trespasses  complained  of  in  the 
different  counts,  and  which  are  intended  to  be  justified,  are  first 
enumerated  in  the  introductory  part  of  the  plea,  and  then  fol- 
lows the  statement  of  actio  ?wn.,  &c.  and  it  is  tlien  alleged  that 
the  close  and  grass,  8cc.  mentioned  in  the  first  count,  and  tlie  close 
and  grass  Sec.  mentioned  in  the  last  count,  at  the  several  times 
when,  Sec.  were  the  same  close  and  grass,  Sec  and  not  other  or 
diHerent,  and  that  the  seizing  and  taking,  8cc.  mentioned  in  the 
first  count,  and  the  seizing  and  taking,  8cc.  mentioned  in  the 
last  count,  are  the  same,  and   not  other  or  difiercnt.(/?)     But 

^'    534  *thcsc  allegations  arc  traversable,  and  it  may  be  questionable 

whether  this  mode  of  pleading  can  in  strictness  be  supported  ; 
but  where  it  is  certain   tliat  the   difi'erent  counts  are   for  the 
same  trespass,  it  may  be  advisable,  in  order  to  save  oipense, 
to  risk  this  concise  mode  of  pleading, 
athly.  The  With  respect  to  the  bodi/  of  the  jdea^  which   states  tl-iC  sub- 

nleas.  ^  stance  of  the  defence,  it  must  necessarily  depend  on  the  ciicum- 
stances  of  each  particular  case.  The  forms  of  those  pleas 
which  usually  occur  in  practice,  are  given  in  the  second  vo- 


(«)  See  the  form,   post,  vol.  2.  422.  see  Cro.  Eliz.  .355.  493.     1  Saund.  299. 

.529.  Sec.  c.     Vin.  Abr.  Trespass,  U.  a.  4.  pi.  9. 

(o)    See   the  entries,   1  Sauinl.  10.  fi-om    which  it    appears  that   after  a 

24.  S-2.  2'J6.    Post,  vol.  2,  519.  j)laintifF  has  new    assigned     another 

(^p)  See  the  forms.  Pleader's  AssiPt-  close,  tlie  defendant  cannot  plead  that 

ant,  401.  post,  vol.  2.  5.57.     9  Wentw.  they  are  one  and  the  same.     In  every 

47.   57.      And   see  Sheldon  v.  Clip-  count,  the  closes,  kc.  are  stated  to  he 

.'iliaw,  Sir  T.  T'laym.  449.  where  a  plea  otliev  closes,  &c.  ante,  307. 
of  this  nature  was  held  sufliciept,  but 


THEIR  FORM  AND  PARTS.  534 

lume,  and  the  qualities  as  to  certainly  of  lime,  place  and  other  ///.  Fomaiid 
circumstances,  have  already  been  considered.  As  a  {irotcstan-  -''"  ^*" 
do,(g')  and  a/hrmal  traverse^{i-)  more  frequently  octur  in  repli- 
cations, we  will  postpone  the  particular  consideration  of  them, 
till  that  part  of  the  work.  In  point  of  form  in  trespass  and 
other  actions,  when  the  plea  necessarily  states  the  trespass  to 
have  been  committed  at  some  other  time  or  piuce,  than  that 
laid  in  the  declaration,  it  is  proper,  immediately  preceding  the 
conclusion  of  the  plea,  to  allege  that  the  supposed  trespasses 
mentioned  in  the  plea,  are  the  same  as  those  whereof  the  plain- 
tiff hath  complained,  which  allegation  is  usually  termed  rjiix 
est  eadenif  and  in  that  case  the  *plea  also  concludes  with  a  tra-  *  535 
verse  of  having  been  guihy  at  any  other  time  or  place,  or  the 
plaintiff  may  demur.(r)  But  when  it  is  unnecessary,  and  con- 
sequently improper  to  vary  from  the  time  or  place  laid  in  the 
declaration,  the  rju<e  est  eade7n  need  not  be  inserted  ;(«)  and  in 
that  case  if  a  traverse  were  added,  the  plea  would  be  demurra- 
ble,(0  though  if  the  traverse  were  defective,  it  Avould  be  re- 
jected as  surplusage. (z<) 

Every  plea  in  bar  must  have  its  proper  conclusion, (v)  whicTj  fithly.  The 
is  either  to  the  countiy,  or  with  a  verification,  and  the  latter  is 
either  of  matter  of  fact,  or  of  matter  of  record.  An  avowry 
or  cognisance  in  replevin,  in  which  the  defendant  is  an  actor,  is 
an  exception  to  this  rule,  and  need  not  have  any  conclusion. (-Ty) 
In  an  action  against  husband  and  wife  both  should  join  in  tiie 
concluding  part  of  the  plea.(x) 

When  there  is  a  complete  issue  between  the  parties,  viz.  a 
direct  affirmative  and  negative,  the  plea  sliould  conclude  to  the 
country  ;(y)  as  when  the  general  issue  is  pleaded,  or  where  llie 
defendant  simply  denies  some  material  fact  alleged  in  the  decla- 


(fj)  Cora.  Dig.  Pleader,   N.     Post,  (0  '2  Sauiid.   5.  n.   3.     Com.   Dig. 

Tol.  2.  644.  Pleaiicr,  E.  31. 

(r)   Coin.  D;-.  Pk'ndcr,  G.  1.  &c.  («)    Salk.  641,  642. 

Post,  vol.  2.  651.  {v)    Com.    Dig.  Pleader,  E.  28.  &c- 

(r)  Com.  Dig.  Pleader,  E.  31.  Cro.  Co.  Lit.  303.  b. 

Jac.  3r'2.    2Sannd.  5.   n.  3.     Seethe  (w)  I  Saund.  348.   n.   7.     Co.   Lit. 

form,  post,  vol. '2.  5.30.     551.     Cowp.  303.  a.     Plowd.  Com.  .34:2.  lo3.  a. 

162.     1  Sauml.  '297.  (.r)    Com.   Dig.    PLeiuler,  C    A.  ?. 

(s)  Skin.  3S7.     Cora.  Dig.  Pleader,  Cro.  594. 

K.  31.    CaiUi.  281.  0/)   t  Saund.  105.  n.  I.     Com.  Dig- 
Pleader,  E.  3'2. 

Vol.  I.  [  49  3 


caucKision.  9^ 


%■ 


535  OF  PLEAS  IN  BAR. 

///.  Formand.  ration,  as  where  the  plaintiff  decUires  in  assumfisit  on  anawardj 
^^"'  *■  and  the  defendant  pleads  no  such  awards  the  plea  must  conclude 

*    S'oG         t^  the  country. (i)  And  this  conclusion  seems  proper,  *although 
the  plea  unnecessarily  contains  a  formal  traverse  ;(a)  and  a  plea 
in  bar  of  rien  in  arrere  to  an  avowry  for  rent  should  so  con- 
clude ■,{.b)  and  this  rule   equally  prevails  whether  the  affirma- 
tive be  first  in  the  pleading,  and  the  negative  subsequent,  or 
vice  verfia,{c)  Lord  Holt  having  declared  that  there  is  no  dis- 
tinction in  this  respect ;  and  therefore  though  the  negative  be 
asserted  by  the  plaintiff,  and  the  affirmative  by  the  defendant, 
as  wnere  the  plaintiff  in  his  declaration  alleges  a  breach  in  non- 
pay  nnent  of  a  sum  of  money  on  a  particular  day,  or  in  not  re- 
pairing, &c.   and  the  defendant  pleads    solvit  ad  diem,  or  that 
he  did  repair,  the  plea  should  conclude  to  the  country  ;  but  in 
debt  on  bond,  if  the  declaration  be  general,  and  no  particular 
breach   be  assigned,  a  plea  of  performance   of  the  condition 
must  conclude  with  a  verification. (d)     So  where  a  plea  puts  in 
issue  matter  of  fact  as  well  as  matter  of  record,  it  should  con- 
clude to  the  country,  as  if  it  be  alleged  in  a  declaration,  that  the 
pU.iniifi"  procured  letters  patent,  and  the  defendant  plead  that 
the    pi.iiniiff  did  not  procure,    because    the   procurement  is 
the  principal  point  in  issue  ;  so  if  the  issuing  of  a  Jieri  facias 
and  a  levy  under  it  be  put  in  issue. (t^)     And  if  a  plea  conclude 
■with  a  special  negative  to  the  affirmative  in  the  declaration,  it 
should  conclude   to  the  country,  as  for  instance  in  debt  on  a 
bond,  the    allegation  in  the  declaration  of  the  making  of  the 
^    537         bond,  includes  *the  allegation  of  the  delivery  as  a  deed  ;  and 
therefore,  if  the  defendant  plead  that  he  delivered  the  deed  as 
an  escrow,  he  may  conclude  to   the  country. (/")     But  where 
there  is  not  a  direct  negative  and  affirmative,  the  plea  need  not 
so  conclude,  as  if  in  debt  on  a  bond  to  account,  the  declaration 
allege  that  the  defendant  received  20/.  for  which  he  did  not  ac- 
,count,  and  the  defendant  plead   that  he  accounted  in  manner 


'^^                         (z)  Com.  Dig.  Pleader,  E.  32.     2  (f)  Carth.  88,  89.  Com.  Dig.  Plead- 

Sauiid.   337.    n.    1.  196.  and  I  Saund.  er,  E.  32. 

103.  n.  1.  (rf)  Id.  ibid. 

(fl)    1    Saund.    103.  b.     Com.  Dig.  (e)  3  Mod.  70.    Com.  Dig.  Pleader, 

^     Pleader,  E.  33.  E.  32.     Sayer's  Rep.  208.  299. 

(6)Ld.  Itaym.  641.    Post,   vol.  2.  (/)  1  Salk  274.    4  Esp.  Rep.  255. 

631.  Com.  Dig.  Pleader,  E.  32.     Post,  vol- 

2.  462. 


THEIR  FORM  AND  PARTS.  537 

following,  viz.  that  he  was  robbed  of  it,  and  gave  notice  to  the  ill.  Form  and 
plaintiff,  tiiis  plea  giving  colour  to  the  plaintiff,  and  referring  /'"'''*• 
the  sufficiency  of  the  mode  of  accounting  to  the  court,  may 
conclude  with  a  verification. (^)  And  where  the  declaration  is 
founded  on  matter  of  record  which  is  traversed  in  the  pica,  it 
should  not  in  general  conclude  to  the  country,  but  should  al- 
lege that  there  is  no  such  record,  and  usually  concludes  with 
a  verification,  and  prayer  of  judgment,  si  actio,  Scc.(/i)  but  a 
verification  appears  to  be  unnecessary  in  this  case  as  the  plea 
is  in  the  negative, (/)  and  if  an  action  be  brought  here,  on  a 
judgment  in  Ireland.,  the  plea  of  nul  ticl  record.^  must  conclude 
to  the  country. (X:) 

It  is  an  established  rule  in  pleading  that  whenever  7ienD  mat- 
ter is  introduced  on  either  side,  the  pleading  must  conclude 
vjith  a  verification  or  averment:^  in  order  that  the  other  party 
may  *have  an  opportunity  of  answering  it.(y)  The  usual  ve-  *  533 
rification  of  a  plea  containing  matter  q{  fact  runs  thus  :  "  and 
"  this  the  said  defendant  is  ready  to  verify,  wherefore  he  prays 
"  judgment,  if  the  said  plaintiff  ought  to  have  or  maintain  his 
"  aforesaid  action  thereof  against  him,"  &c.(r)  and  if  the 
word  certify  be  inserted  instead  of  verify,  no  advantage  can 
be  taken  of  the  mistake. (s)  An  avowry,  we  have  seen,  does 
not  require  any  conclusion,(?)  and  a  plea  of  bankruptcy,  though 
introductory  of  new  matter  should  conclude  to  the  country  ;(«) 
and  where  one  of  several  facts  in  a  declaration  is  denied  with 
a  formal  traverse,  the  plea  may  conclude  with  a  verification  or 
to  the  country .(d)  If  matter  of  record  be  pleaded  as  a  judg- 
ment recovered,  for  the  same  demand,  Sec.  the  plea  should 
conclude  with  dt.  firout  fmtet  fier  recordum,  and  a  verification  by 
the  record,  and  if  several  records  be  pleaded,  they  should  be 


(.5-)  2  Lev.  5.     Com.  Dig.  Pleader,  lliere  cited.     Com.   Dig.  Pleader,  E. 

E.  3tJ.  3.3. 

(//)  Post,  vol.  2.  488.     2Wils.  114.  (r)  See  the  form,  post,  vol.  2.  422. 

Lil.  Ent.  182.  404.  473.  (»)  Willes,  6. 

(0  Fortes.  339.    Com.  Dig.  Plead-  (?)  Ante,     535.  1  Saund.  n.  7. 

er,  E.  29.     Salk.  .120.  (u)  1  P.  Wms.  258,  259.     10  Mod, 

{h)    5  East,  473.       2  Smith's  Hep.  160.  247.     Fortes.  334.     Barnes,  330. 

25.             '  4T.  U.  15G.     3B.«P.  171. 

(7)  1  Saund.  103.   n.  1.   and    Cases  (r-)  1  Sauad.  10.3.    Com.  Dij.  Plead, 

er,  B.  3,?. 


538  OF  PLEAS  IN  BAR, 

In.  Form  and  respectively  verified  \{w)  but  if  mutter  of  fact  as  well  as  mat- 
ter of  record  be  put  in  issue,  the  trial  may  be  by  jury,  and  the 
plea  may  conclude  to  the  country. (x)  To  a  ficire  fucias  upon  a 
recognisance  at^jinst  bail  in  error,  if  the  defendant  plead  that 
the  judg'ment  is  pending  and  not  determined,  he  need  not  con- 

^   539         elude  prout  *patet,  8cc.  the  plea  being  in  the  negative. (2) 

Where  the  plea  contains  a  verification,  it  generally  concludes 
with  a  ftruyer  of  judgment  in  favour  of  the  defendant,  which  is 
termed  the  de^nand  or  fietiiion  of  the  plea,(a}  as  "  wherefore 
"  the  defendant  prays  judgment  if  the  said  plainti^  ought  to 
"  have  or  maintain  his  aforesaid  action  thereof  against  him," 
Sec.  This  prayer  ought  to  correspond  with  and  be  founded  on 
the  premises  in  the  plea  ;  and  therefore  matter  of  defence 
arising  afler  the  commencement  of  the  suit  should  be  con- 
cluded with  a  prayer  as  to  the  further  maintenance  of  the 
suit  :(A)  so  a  pica  in  abatement  which  contains  matter  in  part 
abatement  of  the  writ,  should  strictly  be  pleaded  accordingly  ;(c) 
but  a  mistake  in  these  cases  (with  the  exception  formerly  no- 
ticed in  pleas  in  abatement)((^)  will  not  vitiate,  and  the  court 
will  ex  officio  give  judgment  in  favour  of  the  defendant,  ac- 
cording to  the  substance  of  the  plea,  without  reference  to  its 
conclusion. (f)  In  an  rxtion  of  debt  the  defendant  in  pleading 
a  tender  ought  to  conclude  his  plea,  by  praying  judgment  if 
the  plaintiff  ought  to  have  or  maintain  his  action  to  recover 
any  damages  against  him  ;  for  in  this  action,  the  debt  is  the 
principal,  and  the  damages  are  only  accessary  :  but  in  assump- 
sit the  damages  are  the  principal,  and,  therefore,  in  pleading 
a  tender  in   that  action,  the  defendant  ought  to  conclude  his 

*  540  plea  with  a  prayer  *of  judgment,  if  the  plaintiff  ought  to  have 
or  maintain  his  action,  to  recover  any  more  or  greater  damages 
than  the  sum  tendered,  or  any  damages  by  reason  of  the  non- 


(w)     Com.   D!-    Plea<'er,    E.   29.  («)  2  B.  k  P.  423.  2  Saund.  210.  (3. 

Wiiles,  120.     See   the    Ibrais,    post,  4  EksI,  502. 

vol.  2.  438.  (i)  4  East,  502. 

(,r)  Sayer,    208.  3i!!.      HaL.    244.  (c)  2  B.  k  P.  420. 

Ante,  53G.  {d)  Ante,  445,  446. 

(z)  2  Salk.  520,  \e)  4  East,  502.    509.      2  B.  &  P 

420.     Plowd.  66.     2  Saund.  210.  d. 


OF  SEVERAL  PLEAS.  54(j 

payment  thereof.(/)     In  pleadint^  matter  of  estoppel,  the  de-  ///.  Fumantl 
fcndant  in  the  conclusion  of  his  plea  should  rely  on  11.(5-)  parts. 

It  was  enacted  by  the  statute  of  4  ^mi.  c.  16.  s.  1.  "  that  no 
<'  advantage  or  exception  shall  be  taken  of  or  for  the  want  of 
"  averment  of  /loc  fiaratus  est  veri^care,  or  hoc  fiaratus  est  -ve- 
"  rificare  per  recordum  ;  or  of  or  for  not  dW&'^xw'^  prout  fiatet 
"  tier  recordum^  or  any  other  matter  of  like  nature,  except  the 
"  same  shall  be  specially  and  particularly  set  down,  and  shewn 
"  for  cause  of  demurrer."  Since  this  statute,  a  wrons^  or  de- 
fective conclusion,  either  to  the  country  or  with  a  verification, 
Sec.  can  only  be  objected  to  by  special  deinurrer.(//) 


We  have  already  seen,  when  considering  the  qualities  of  a  Of  several 
plea  in  bar  at  common  law,  and  which  still  govern  in  the  for-  ^ 
mation  of  each  plea,  taken  separately,  that  it  must  be  single, 
and  that  duplicity  will  render  it  insufficient,  and  that  the  de- 
fendant could  not  plead  several  defences  to  the  same  part  of  a 
declaration  :(/)  but  now  it  is  enacted  by  the  statute  4  Arm.  c. 
16.  s.  4.  Sc  5,  "  that  it  shall  be  lawful  for  any  defendant  or  te- 
"  nant  in  any  action  or  suit,  or  for  any  plaintiff  in  replevin,  in 
"  any  court  of  record,  *vvith  the  leave  of  the  same  court,  to  ^  tLA\ 
"  plead  as  many  several  matters  thereto,  as  he  shall  think  ne- 
"  cessary  for  his  defence  ;  provided  nevertheless,  that  if  any 
"  such  matter  shall,  upon  a  demtu-rer  joined,  be  judged  iii- 
"  sufficient,  costs  shall  be  given  at  the  discretion  of  the  court, 
"  or  if  a  verdict  shall  be  found,  upon  any  issue  in  the  said  cause, 
"  for  the  plaintiff  or  demandant,  costs  shall  be  also  given,  in 
"  like  manner  ;  unless  the  judge  who  tried  the  said  issue,  shall 
"  certify  that  the  said  defendant  or  tenant,  or  plaintiff  in  re- 
"  plevin,  had  a  probable  cause  to  plead  such  matter,  which 
"  upon  the  said  issue  shall  be  found  against  him.  Provided 
"  also,  that  nothing  in  this  act  shall  extend  to  any  writ,  decla 


(/)  2  Salk.  622,  623.    1  Ld.  Raym.  6S.     I  Saund.  325.  n.  4.     Willes,  13. 

254.     Willes,  13.  (A)  2  Si'und.  190.  n.  5.     Com.  Dij 

(^)  Co.   Lit.   303.   b.      Com.    Dig.  PKadci-,  E.  i:y.  32,  ZZ. 

Pleader,  E.  31.     Estoppel,  E.     Dul.  (i)  Ante,  512,  51?. 


541  OF  PLEAS  IN  BAR. 

Of  several  "  ration,  or  suit  of  apiK'al  of  felony-  Sec.  or  to  any  writ,  bill, 
"  action,  or  inlormation  upon  any  ficnai  statute,  (at) 

The  liberty  to  plead  several  pleas  is  confined  to  courts  of 
record,  and  therefore,  if  in  the  county  court  the  defendant 
plead  two  or  more  pleas,  the  plaintiff  may  demui'  for  duplicity. 
And  in  courts  of  record  the  defendant  cannot  plead  nun  assumfi- 
sit,(l)  or  non  est/actu?n.(?n)  to  the  whole  declaration,  and  a  ten- 
der as  to  part ;  for  one  of  these  pleas  goes  to  deny  that  the 
plaintiff  ever  had  any  cause  of  action,  and  the  other  partially 
admits  it ;  and  in  the  Common  Pleas  the  defendant  cannot 
plead  non  as&umfisit^  and  the  stock-jobbing  act,(ra)  or  non  as' 
sumjisit,  and  alien   enemy. (o)     Nor  can  the  defendant    plead 

*  .542  several  *matters  which  require  different  trials,  as  in  dower,  ne 
uncjues  accou/iic  en  loyal  matrimonie^  and  ne  ungues  seisie  que 
dower,(/i)  for  the  first  mutter  is  triable  by  the  bishop,  and  the 
other  by  a  jury,  and  if  the  former  be  found  against  the  defend- 
ant, the  judge  cannot  certify  that  he  had  a  probable  cause  of 
pleading  it.  Nor  is  the  king  bound  by  this  statute  ;  and  where 
he  is  plaintiff,  the  defendant  cannot  plead  double  without  leave 
of  the  Attorney-General. ((/)  Nor  does  this  statute  extend  to 
any  action  or  information  upon  a  penal  statute.(r)  But  with 
these  exceptions  the  defendant  may,  in  different  pleas,  plead  as 
many  different  grounds  of  defence  as  may  be  thought  necessary, 
though  they  may  appear  to  be  contradictory  or  inconsistent, (s) 
as  in  trespass,  not  guilty,  a  justification,  and  accord  and  satis- 
faction. See. 

When  several  pleas  are  pleaded  under  this  statute,  the  se- 
cond and  subsequent  pleas  sliould,  in  strictness  in  the  intro- 
ductory part  of  each,  state  that  it  is  pleaded  "  by  leave  of  the 
"  court Jirst  had  and  obtained"  but  ihe  omission,  though  in- 
technical  and  an  irregularity,  appears  to  be  no  cause  of  demur- 


{k)  The  construction  and  practice  (/>)  2  Rl.  Rep.  1 157.  120" 

upon  this  statute  will  be  found  in  Go-  (9)  Willc.s,  533.       Forrest's    Rep. 

rayns'  Digesl,  title   Pleader,  E.  2.  &  Exchequer,  57.  A.  D.  1801. 

Tidu's  Prac.  4tli  edit.  601  to  609.  (r)     2   Stra.   1044.      Rep.     temp. 

(0  4  T.  R.  194.  Hardw.  2G'-'.     4  T.  1{.  701. 

{in)  5T.  R.  95.  (s)   See  the  instances.  Com.  Dig;. 

00  1  B.  &  P.  222.  Pleader,  E.  2. 

(«.)  Id.  n.  (rt).    2  B.  &  P.  72. 


BY  SEVERAL  DEFENDANTS.  542 

rer  ;(0  and  if  in  fact  no  leave  has  been  obtained,  or  it  has  been   Of  several 
improperly  obtained,  the  proper  course  is  either  to  sign  judg-  ^  ^°'^' 
ment,  or  to  apply  to  the  court  to  strike  oui  one  of  the  pleas. (u) 
Where  there  are  several  pleas,  it  is  advisable,  in  order  to  avoid 
prolixity  *and  expense,   if  practicable,   to  refer  in  subsequent  *    545 

pleas,  to  a  statement  of  the  same  matter  in  a  preceding  plea, 
the  same  as  in  the  case  of  several  counts  in  a  declaration  \{v) 
but  one  plea  cannot  be  taken  advantage  of  to  help  or  vitiate 
another,  for  every  plea  must  stand  or  fall  by  itself,  unless  ex- 
pressly referred  to  by  an  appropi-iate  allegation. (^y) 


In  general  when  the  defence  is  in  its  nature  joint,  several  dc'  Of  plens  hy 
fendants  may  join  in  the  same  plea,  or  they  may  sever  ;  and  fondants. 
one  defendant  may  plead  in  abatement,  another  in  bar,  and  the 
other  may  demur  ;(x)  except  in  an  action  against  husband  and 
wife,  when  the  husband  must  join  in  the  plea  with  his  wife.(!/) 
And  by  way  of  defence  two  may  join,  although  the  subject  mat- 
ter of  their  plea  be  several,  as  in  an  audita  (juerela  ;{z)  and  in  tres- 
pass against  two  for  battery,  they  may  jointly  plead  that  the  plain* 
tiff  assaulted  them,  and  that  they  in  self-defence  beat  the  plain- 
tiff, or  they  may  sever  ;(a)  or  they  may  jointly  plead  that  they 
were  servants  of  A',  and  committed  the  assault  in  his  defence  ; 
so  where  two  justify  an  arrest  by  joint  warrant. (6)  Joint-te- 
nants and  coparceners  mvist  join  in  an  avowry,  and  a  cognisance 
as  their  bailiff  should  be  for  the  entire  rent  ;(c)  but  tenants 
in  common  must  sever,  and  the  avowry  of  each  must  be  de 
una  medietate  *of  the    whole  rent,  and  not  of  a  certain  sum  ^    ca^ 

which  amounts  to  a  moiety  ;  and  when  the  action  is  against  one 


(OAnilr.  108.    1  Wils.  219.  Cowp.  (j/)  Com.   Dig.   Pleader,  2  A.  3.— 

500,  .SOI.     Sed  vide  1  H.  Bl.  2r.i.  278.  Cro.  Jac.  239.  288. 

{u)    Id.  ibid.       Ti<ld's  Prac.   4th  (:)  Cio.  Eliz.  473. 

edit.  605.     1  B.  8c  P.  415.  (a)  2  Vin.  Abr.  76.  pi.  14. 

(r)  Ante,  39fi.     Willes,  3S0.  (6)  2  Vin.  Abr.  76.  pi.  15,  16. 

(w)  Willes,  380.  (c)    Bac.   Abi-.  Joint-tenant,  K. — 

(or)    2  Vin.    Abr.  75.   tit.  Action,  Replevin,  K.      5  T.  R.  246.     1  Lev. 

Joinder,  H.  D.    Com.  Dig.  Pleader,  109.     Sir  T.  Raym.  80. 
E.  55. 


V 


544  OF  PLEAS  IN  BAR. 

Of  pleas  hrj  of  scvcral  tenants  in  common,  he  avows  for  his  own  propoi'- 

icvei'cd    ik-  .  ,  .  .  •         r  1 

femlanis.  tion,  and  makes  cognisance  as  bailiff  of  hts  companion  for  the 

resichie,(rf)  or  he  may  avow  only  for  his  undivided  siiare  of  the 
rent  ;(t')  and  if  the  action    of  replevin   be  against  two  tenants 

»  .r  in  common,  they  should  join,  one  avowing  and  the  other  as  his 

bailiff  making  cognisance  for  an  undivided  moiety  of  the  rent, 
and  then  the  one  who  first  made  cognisance  avowing  his  own 
right  and  the  other  who  first  avowed  making  cognisance  as  his 
bailiff  for  the  other  undivided  moiety  ;(/)  and  if  three  tenants 
in  common  distrain  thirty  beasts,  it  is  said  they  should  each 
avow  separately  for  ten  ;(5')  and  one  tenant  in  common  cannot 
avow  alone,  for  taking  cattle,  damage -feasant^  but  he  ought  also 
to  make  cognisance  as  bailiff  of  his  companion  (A)  And  where 
two  persons  are  defendants  in  replevin  they  cannot  make  seve- 
ral avowries  in  their  own  right  for  distinct  matters  ;  thus  if  one 
avow  for  rent  service,  and  the  other  for  rent  charge,  both  the 
avowries  shall  abate,  for  the  court  would  be  in  doubt  to  which 
of  them  return  should  be  awarded.(z)  Several  persons  having 
several  estates,  cannot  join  in  prescribing,  because  the  pre- 

*■  545  scription  of  one  does  not  concern  the  other  ;(>(■)  though  an  *ex- 
ception  has  been  allowed  where  two  persons  commit  a  joint 
trespass. (/)  So  personal  defences  as  coverture,  infancy.  Sec. 
should  be  pleaded  separately  ;  and  one  of  several  defendants 
may  justify  by  command  of  another  defendant,  who  pleads  not 
guilty,  or  suffers  judgment  by  default,  for  his  act  shall  not.  take 
away  the  ground  of  defence  fiom  his  servant. (?w) 

If  two  defendants  join  in  a  plea,  Avhich  is  sufficient  for  one, 
but  not  for  the  cfther,  the  plea  is  bad  as  to  both,  for  the  court 
cannot  sever  it  and  say  that  one  is  guilty,  and  timt  the  other  is 
not,  when  they  all  put  themselves  on  the  same  terms. («)  Thus 
it  has  been  held  that  if  an  officer  plead  separately  under  a  writ 
of  ^.  fa.  or  other  process,  he  need  not  state  the  judgment  on 


(rf)  Id.  ib:d.       Post,  vol.  2.  514.  n.  {JS)  2  Vin.   Abr.   56.  pi.  47.  76.  pi. 

o.    2  Vin.  Abr.  59.  pi.  27.  18.     Sed  vide  1  Saund.  348. 

(£>)  5  T.  R.  246.     2  H.  Bl.  .SS7.  {I)    2  Vin.  Abr.  76.  pi.  18.      Ante, 

(  /■)  Salk.  207.     5  T.  11.  247.  9.  n.  o.     Sed  qusere. 

\s)  Id.  ibid.      Co.   Lit.  sett.    314.  (w)  2  Mod.  67. 

317.  («)  1  Sauud.  2S.  n.  2.     3  T.  R.  37&, 

(A)  2  H.  Bl.  386.  377.     1  Stra.  509.  994.  1184.     3  Wils. 

(j)  5  Co.  19.  a.  3S.  b.  344.     3  East,  132,  133.     2  East,  263 


4^ 


BY  SEVERAL  DEFENDANTS.  545 

^vliich  the  writ  was  founded  ;  but  if  he  join  in  the  plea  with  Jiti  snrral 
the  pliinum  in  the  tonner  action,  and  the  judgment  be  not 
stated,  the  plea  will  be  bad  as  to  both  the  defendants,  unless 
the  plaintiff  in  the  former  suit,  justify  merely  in  aid  of  the  oHi- 
cer  ;(o)  but  this  rule  does  not  apply  where  the  objection  to  the 
plea  is  merely  on  account  of  surplusage  ;(/?)  and  if  several 
executors  join  in  the  same  plea  of  jUcne  ad7ni>>islravif,  each 
will  only  be  liable  to  pay  the  assets  found  by  the  jury  to  be  in 
his  own  hands,  though  it  is  more  usual  for  each  executor  *to  ^    546 

plead  separately. (y)  If  the  defendants  join  in  the  plea,  and  it 
is  in  the  singular  number  it  will  be  bad  on  demurrer  (r)  The 
plaintiff  may,  in  an  action  in  form  ex  delicto^  enter  a  nolle  firo- 
serjui  as  to  one  ;(4)  but  in  actions  in  form  ex  contractu,  unless 
the  defence  be  merely  in  the  personal  discharge  of  one,  a  nolle 
prosequi  cannot  be  entered. (/)  If  the  defendants  plead  seve- 
rally, the  plaintiff  may  demur  to  one  plea,  and  join  issue  on  the 
other,(u)  and  may  in  an  action  ex  delicto  afterwards  enter  a 
nolle  prosequi  on  the  demurrer,  and  proceed  against  the  other,(T;) 
or  if  several  issues  are  joined,  he  may  enter  a  nolle  prosequi  to 
one  before  or  after  judgment. (w) 

As  a  defective  declaration  may  be  aided  at  common  law  by  Defects  when 
the  plea  or  by  a  verdict, (or)  so  a  defective  jilea  may  be  aided  in  '''"^*'- 
some  cases  by  the  replication  or  verdict  ;  and  the  statuie  of 
jeofails  and  that  for  the  amendment  of  the  law,  also  aid  m.any 
mistakes  after  verdict  or  judgment. (//)  Thus  an  inforina!  plea 
in  bar  may  be  aided  I)y  tlie  re/ilication^  as  if  in  debt  on  bond  to 
make  an  estate  to  A,  the  defendant  pleads  that  he  enfeoffed 
another  to  the  use  of  A^  (which  is  not  suHicient  without  shew- 
ing that  A  was  a  party,  or  had  the  deed,)  yet  if  *the  plaintiff        *  547 


(o)  Id.  ibid.      2  East,  26.3.  270.     3  {u)    Cro.  Car.  239.  '24.'3.      Hob.  70. 

East,  13-2,   133.  142.     3  Wils.  376.  Com.   Di;^.    Plearler,  E.    35.      TiddV 

(  l>)  3  T.  U.  377.  Prac.  4tb  edit.  790. 

\q)   1  Saund.  336.  n.  10.  (f)  Id.  ibiii.     Wlicn   nol,  see  4  T. 

(r)  Lutw.  1531.     Com.  Dig.  Plead-  R.  360.     1  .Saund.  285.  n.  5. 

er,  E.  35.  (7:')  Id.  ibid. 

(.<()  Salk.   457.      Tidd's    Prac.   4lIi  (.r)    Ante,  401. 

edit.  622.  (w)  Com.  Dig.  Pleader,  E.  37,  SS^ 

(0    1  Wils.  89.      .?  Esp.   Rep.  76.  .39.      Viii.  Abr.   tit.   Rei-iication.      4 

Ante,  32.  Ann.  c.  16.     1  SaUHd.  228.  a.  n.  1. 

Vol.  I.  [  50  J 


547  £)EFtCTS  WHEN  AIDED. 

Defecta  ivhen  I'cply  that  he  did  not  enfeoff,  this  aids  the  bar  ;(2)  so  if  the  de- 
mdcd.  leiuiant  plead  an  award  without   sufficient  certainty,  and  the 

phiintiff  make  a  replication  which  imports  the  award  to  have 
been  made,  it  aids  the  uncertainty  of  the  bar.(a)  But  a  plea 
which  is  substantially  and  altogether  bad  will  not  be  aided  by 
the  replication  \{h')  as  if  the  defendant  plead  an  accord,  and 
does  not  shew  satisfaction,  and  the  replication  denies  the  agree- 
ment, this  docs  not  aid  the  bar.(c)  A  verdict  also  will  fre- 
([ucntly  aid  a  defective  plea,  as  if  in  a  plea  staling  a  right  of 
common  for  cattle  levant,  and  couchant^  the  defendant  after- 
wards omit  to  allege  that  the  cattle  which  he  put  on  the  locus 
ill  (juQ  were  levant  and  couchant^  and  issue  be  taken  upon  the 
prescriptive  right,  and  it  be  found  for  the  defendant,  the  omis- 
sion of  the  allegation  that  the  cattle  were  levant  and  couchanty 
though  bad  on  demurrer,  will  be  aided  by  verdict  ;(rf)  but  if 
in  pleading  a  right  of  common,  it  be  too  generally  described 
as  to  its  commencement  and  determination,  it  would  be  insuffi- 
cient even  after  verdict. (^) 


(r)  Cro.  Eliz.  825.  (rZ)   Cro.   Eliz.   458.       Com.    Dlj;. 

(«)  Coin.  Dig.  P!e;ulei-,  E.  A7.  Pleader,  E.  58. 

(/j)  S  Co.  120.  b.     '2  Wils.     150.  (»-)  a  B.  k  P.  257. 

(c)  Com.  Dig.  Pleader,  E.  37. 


548 


CHAPTER  VIII. 


OF     REPLICATIONS. 


I 


F  when  the  defendant  has  pleaded  the  plaintiff  perceive  that  General  vb- 

1  ^  !••  ..iiij'i         serxKUiana. 

he  cannot    support  his  action  to  any  extent,  he  should  either 

obtain  leave  to  discontinue  ;(a)  or  he  may  enter  a  nolle  firossqui 
as  to  tlie  whole  or  a  part  of  the  cuuse  of  action, (''^)  unless  there 
has  been  a  demurrer  for  misjoinder  ;(c)  and  if  where  there 
are  several  defendants  in  an  action  for  a  tort,  or  in  an  action  ex 
contractu^  where  tlie  plea  of  one  of  the  defendants  is  merely 
in  his  personal  discharge,  as  bankruptcy,  kc.  the  plaintiff  may 
enter  a  nolle  firosecjui  as  to  him.(f/)  So  where  plcne  adminifs- 
travit  has  been  pleaded,  the  plaintiff  may  take  judgment  of  c*- 
nets  in  futiiro  ;{e)  or  to  a  plea  of  the  insolvent  debtors'  act,  he 
may  take  judgment  for  his  demand  to  be  levied  against  the  de- 
fendant's futuVe  effects. (/■)  The  points  relating  to  discontinu- 
i>!g,{g)  and  entering  a  nolle /irosequi^^/i)  are  principally  matters 
of  practice,  and  have  already  been  fully  treated  of  ;  we  will 
therefore  proceed  to  the    *consideration  of  replications,  which  *    549 

answer  the  defendant's  pleas. 

As  the  replication  is  m  general  governed  by  the  plea,  and 
most  frequently  denies  it,  the  pleader  has  not  often  much  dif- 
ficulty in  deciding  what  replication  he  should  adopt.  When 
the  plea  properly  concludes  to  the  country,  the  plaintiff  cannot 
in  general  reply,  otherwise  than  by  adding  what  is  termed  the 


(a)  Tidd'sPrac.  4th  edit.  617.     Id.  (i°)  See  the  precedent,  post,  vol.  2. 

620,  G21.  6 1  J,    613. 

(A)  See  tlie   precedent,  post,  vol.  (_/")  1  T.  R.  80.    Sec  the  precedent, 

2.  595.  post,  vol.  2.  596. 

(c)  in.    Bl.   108.      1  Sauvid.   285.  (5-)  Tidd,  .3d  edit.  626  to  629.   4th 
n.  5.  edit.  617  to  020.     2  Saund.  73.  n.  1. 

(d)  Ante,  32.      Tidd's  Tjac.  4th  (A)    Tid<l,  3d  edit.  629  to  633.  4tU 
edit.  622.  edit.  620  to  623.     1  Sauud.  207.  n.  2. 


549  OF  REPLICATIONS  IN  GENERAL. 

General  ob-  similiter  ;(i)  but  when  the  pica  concludes  with  a  verification^ 
sei-vationa.  ^^^^  replication  may  either,  first,  conclude  the  defendant  by 
matter  of  cst'jppcl ;  or,  secondly,  may  denij  the  truth  of  the 
matter  alleged  in  the  plea  either  in  whole  or  in  part ;  or, 
thirdly,  may  confess  and  avoid  the  plea  ;  or  fourthly,  in  the 
case  of  an  evasive  plea,  may  new  assign  the  cause  of  action. 
And  though  at  common  law  a  replication  cannot  be  double,  or 
contain  two  or  more  answers  to  the  same  plea,  and  the  statute 
4Jnn.  c.  16.  does  not  extend  to  replications,  (except  in  the  in- 
stance of  a  plea  in  bar  to  an  avowry  in  replevin,  which  is  in 
the  nature  of  a  replication,)  yet  the  plaintiff  in  many  cases  has 
an  election  of  different  replications ;  thus  if  infancy  be  pleaded 
in  assnm/isit,  the  plaintiff  may  reply  either  that  the  defendant 
was  of  at;e,  or  that  tlie  goods,  Sec.  were  necessaries,  or  that 
the  defendant  after  he  came  of  age  ratified  and  confirmed  the 
promiscv  or  he  may  reply  as  to  part  of  liis  demand,  tJiat  it  was 
fornecessi.rics ;  to  oiher  part  that  the  defendant  was  of  full  age 
at  the  time  of  the  contract ;  and  to  other  part  that  he  confirm- 
ed it  after  he  came  of  age.  So  if  an  executor  or  administrator 
plead  several  judgments  outstanding,  and  no  assets  itltra,  the 
*■    550  pliintiff  may  reply  as  to  one  of  *the  judgments,  mil  tiel  record ; 

and  to  another  that  it  was  o'Dtuincd  or  kept  on  foot  by  fraud. (A) 
So  if  a  set-off  on  a  recognisance  and  also  on  simple  contract  be 
pleaded,  the  phiintiff  may  reply  as  to  the  recognisance  nul  tiel 
record,  and  as  to  the  residue  of  the  plea  iril  debet. {i)  And  if  a 
tender  be  pleaded,  the  plaintiff  may  either  deny  the  tender  or 
its  sufiiciency,  or  may  reply  a  request  before  or  after  the  ten- 
der, or  that  a  writ  was  previously  issued. (y)  And  in  the  case 
of  a  set-off,  the  plaintiff  may  either  deny  the  existence  of  the 
debt,  or  may  reply  the  statute  of  limitations.  And  if  the  sta- 
tute of  limitations  be  pleaded,  the  plaintiff  may  reply  either  that 
the  defendant  did  undertake,  or  that  the  cause  of  action  did  ac- 
crue, witiiin  six  years  in  the  negative  of  the  words  of  the  plea, 
or  that  the  accounts  were  between  merchants,  or  that  the  writ 
"was  issued  within  six  years.  In  short,  in  almost  every  action, 
the  plaintiff  has  frequently  the  choice  of  several  replications. 


(0  Com.  Dig.  Pleader,  R.  1.  (?)  I  East,  369. 

(A)  1  Saund.   337.  b.  n.  2.     1  Salk.         (./)  1  Saund.  35. 
298.     1  Ld.  IJayra.  20J.  S,  C. 


OF  THE  SEVERAL  REPLICATIONS. 


550 


We  will  consider  the  points  relating  to  replicutions  under  Gewminh. 
the  following  divisions  :  oev^KUiom. 

"I.  The  several  replications  which  usually  occur  in  practice, 

1st.  In  assumpsit. 

2d!y.  In  debt. 

odly.  In  covenant. 

4tlily.  In  delinue. 
J  <^  5thly.  In  actions  against  executors  and  heirs. 

\  J  6thly.   In  case. 

7ihly.  In  trover. 

Bthly.  Pleas  in  bar  in  replevin. 

ythly.  Replications  in  trespass. 
,  II.     Their  form  and  parts. 
^III.  'l"heir  qualities. 


*/.  THE  SEVERAL  liEPLlCATIOJWS.  *    5^1 

In  ASSUMPSIT,  if  the  defendant  has  pleaded  infancy  in  bar,  jn  assumpsit. 
the  plainlifi'  may,  if  the  plea  were  untrue,  reply,  denying  the 
fact.(>t)  or  if  true  he  may  reply  that  the  goods  mentioned  in 
some  of  the  counts  of  the  declaration  to  have  been  sold  to  the 
defendant  were  necessaries,  which  fact  will  not  be  intended  un- 
less alleged,  and  that  the  money  mentioned  in  the  count  for 
money  paid  was  paid  in  the  purchase  of  necessaries  for  the  de- 
fendant, and  may  enter  a  7iolle  prosctjiu  as  to  the  counts  for 
money  lent,  had  and  received,  and  upon  an  account  stated ;(/) 
or  he  may  reply  to  the  whole  or  part,  that  the  defendant  rati- 
fied and  confirmed  the  promise  after  he  came  of  age.(w)  But 
to  a  plea  in  bar  of  coverture  at  the  time  the  promises  were 
made,  the  plaintiff  can  only  deny  the  fuct,  or  reply  some  mat- 
ter which  shews  that  at  the  time  the  defendant  was  compe- 
tent to  contract,  as  that  her  husband  was  then  civiliter  moriuus  ; 
and  he  cannot  reply  that  she  had  a  separate  maintenance, 
secured  to  her  by  deed.^??)  and  therefore  there  is  seldom  any 
answer  to  this  plea.  When  alien  enemy  has  been  pleaded,  the 
plaintiff  may  either  deny  the  fact,  or  if  true    *may  reply  a  li-  ^   559 


(A)  Post,  vol.  2.  594.    CI.  Asst.  7C.         (m)  Post,  vol.  2.  5^5.     1  T.  R.  6i8. 

(/)  1  Salk.  223.      Post,  vol.  2.  594.         (/;)  8  T.  R.  545. 
Ci-o.  Jac.  560.      1  T.  R.  40.    Com. 
Dig.  Pleader,  2  W.  22. 


552 


OF  THE  SEVERAL  REPLICATIONS. 


In  assjtmpsif.  cense,  8cc.  to  reside  in  this  country  ;(o)  and  when  a  discharge 
under  the  insolvent  debtors'  or  lords'  act  is  pleaded,  the  replica- 
tion may  either  deny  the  fact,(/i)  or  reply  that  the  discharge 
was  obtained  by  fraud, (y)  or  in  the  former  case,  the  plaintiff 
may  admit  the  plea  and  take  judgment  for  his  demand,  to  be 
levied  of  the  future  effects. (?•)  If  gaming,  usury,  or  any  other 
illegality  in  the  consideration  or  contract  be  pleaded,  the  plain- 
tiff may  reply  that  the  contract  vv^as  made  upon  a  good  and  le- 
gal consideration,  and  not  upon  the  supposed  unlawful  consi- 
deration mentioned  in  the  plea.(5)  To  a  plea  of  tender,  the 
replication  may  either  deny  the  tender  generally,(?)  or  state  that 
a  writ  was  previously  issued, («)  or  a  writ  with  continuances  ;(t) 
but  if  the  plea  state  that  the  tender  was  made  before  the  com- 
mencement of  the  suit,  instead  of  exhibiting  the  bill,  then 
there  appears  no  necessity  to  reply  the  writ,  and  it  would  be 
sufficient  to  produce  it  in  evidence  ;  or  the  plaintiff  may  reply 
a  prior(TO)  or  subsequent(x)  demand,  or  admitiing  the  tender, 
may  proceed  to  trial  on  the  plea  of  non  assiwijisit,  when  he  is 

*  553  prepared  to  prove  that  more  was  due  than  the  *sum  tender- 
ed.(y)  The  replication  to  a  plea  of  accord  and  satisfaction, 
may  either  deny  the  delivery  of  the  chattel  in  satisfaction,  or 
protesting  against  that  fact,  may  deny  the  acceptance  :(r)  and 
if  an  award  be  pleaded,  the  plaintiff  may  either  deny  the  sub- 
mission, or  the  award,  or  may  set  out  the  whole  award,  and  if 
bad  in  point  of  kiw,  may  demur. (a)  If  a  former  recovery  for 
the  same  debt,  or  a  plea  of  set-off  on  a  recognisance  be  plead- 
ed, the  replication  is  mil  del  record  :{b)  and  to  a  plea  of  judg- 
ment recovered,  the  plaintiff  may  new  assign  that  his  action  is 
for  the  breach  of  different  promises  ;(c)  or  to  a  plea  of  release.. 


(o)  43  Geo.  III.  c.  155. 

(/))  3  Wentw.  200.  199.  and  id.  In- 
dex, XX. 

(9)  31  Geo.  III.  c.  70.  s.  38.  55.  44 
Geo.  III.  e.  108.  kc. 

(r)  Post,  vol.  2.  596.  1  T.  R.  80. 
Com.  Dig-.  Pleader,  2  G.  16. 

(.9)  Cora.  Dig.  Pleader,  2  W.  23.  2 
T.  R.  439.  1  Saund.  103.  b.  n.  3. 
Post,  vol.  2.  616.  3  Wentw.  104.  108. 
and  id. Index,  V. 

(0  Post,  vol.  2.  59C. 


{n)  Id.  597. 

(r)  Id.  598. 

(w)  Id.  600. 

(a-)  Id.  601. 

(?/)  Post,  vol.2.  601. 

(-)  Post,  vol.  2.  602.  See  0  Wentw. 
Index,  VI.  VII.  X. 

(a)  Vol.  2.  602.  3  Wentw.  Index, 
VIII. 

(A)  Post,  vol.  2.  802,  803,  804. 

(c)  Post,  vol.  2.  652. 


OF  THE  SEVERAL  REPLICATIONS.  553 

iie  may  reply  non  est  factum^f^cl')  or  that  it  was  obtained  by  In  a.isiimpsU. 
duress  or  fraud,(f)  and  it  is  in  general  unnecessaiy  to  state  the 
particulars  of  fraud  ;(/)  or  to  a  plea  of  release  by  a  tiiird  per- 
son, the  plaintiff  may  reply  nc  relesna  /las.(g)  To  a  plea  of 
set-off  on  simple  contract,  the  plaintiff  may  reply  riil  dcOet,{/i) 
or  the  statute  of  limitations,^)  or  any  matter  which  a  defend- 
ant in  an  action  might  plead  ;  but  if  tlie  set-off  be  on  a  spe- 
cialty or  judgment,  or  other  matter  of  record,  such  replication 
would  be  insufficient,  and  the  pkuniiff  should  reply  7ion  est  fac- 
tum, 7iul  ticl  record,  or  payment,  ^c.(J)  and  as  the  statute  4 
,'i}i72.  c.  i-6.   *does  not  extend  to  replications,  and  the  statutes  *   554 

which  give  the  plea  of  set-off  do  not  specify  how  the  plaintiff 
is  to  reply,  it  should  seem  that  the  plaintiff  cr.nnot  reply  seve- 
ral distinct  answers  to  a  plea  of  set-off.  When  the  court  of 
conscience  act  has  been  pleaded,  the  plaintiff  may  deny  the  re- 
sidence of  the  defendant  within  the  jurisdiction,  or  may  allege 
that  more  than  4O5.  &c.  was  due.(A-)  When  the  statute  of  li- 
mitations .  has  been  pleaded,  either  that  the  defendant  did  not 
undertake,  or  that  the  cause  of  action  did  not  accrue  within 
six  years  before  the  exhibiting  of  the  plaintiff's  bill,  and  the 
plaintiff  can  prove  a  promise  or  acknowledgment  within  that 
time,  the  replication  may  deny  the  plea  generally,  and  con- 
clude to  the  country  -,(1)  but  if  the  time  bf  issuing  the  first 
writ  in  the  action  be  material,  it  should  be  replied  specially, 
as  in  the  case  of  a  lender,  and  if  continued  process  be  stated, 
the  return  of  the  first  must  be  shewn  ;(?«)  but  this  does  not 
seem  necessary  when  the  plea  states  "  before  the  commence- 
**  ment  of  the  suit,"  instead  of  "  the  exhibiting  the  bill," 
though  a  special  replication  is  in  general  advisable,  because  it 
may  reduce  the  proof  to  be  adduced  by  the  plaintiff  on  the 
trial  ;  the  replication  may  also  be  that  the  plaintiff  or  the  de- 
fendant was  abroad,  when  the  cause  of  action  accrued,  and  that 


(d)  Post,  vol.  2.  60.1.  C  J)  1  East,  .309.     3  Wentw.  Index, 

(e)  Post,  vol.  2.  603.  AVentw.  In-     XIV. 

«lc.\,  XII.  (k)   Post,   vol.   2.   G05.     3  Wcnt\r. 

(/)9Co.  no.  Index,  XVIII. 

l^)  2  Bulst.  55.  (/)  Post,  vol.  2.  605,  fiOG. 

(/i)  Post,  vol.  2.  597.  601                           (vi)  i'ost->  vol;  2.  COP.  and  id.  n.  (^  \ 

fn  Post, vol.2. fins. 


554  OF  THE  SEVEHAL  REPLICATIONS. 

In  assvmpfsit.  the    action  was  commenced  within  six  years  after  his  first  re- 
*    555  turn  ;(«)  and    any   other  circumstance  *which  brings  the  case 

within    either  of  the    exceptions    mentioned    in    the    statute, 
should  be  replied. (o) 
In  debt.  In   actions  of  DEBT   on  sim/ile  contract,  the  replications  are 

substantially  the  same  as  in  the  action  of  assumjusit.  If  to  debt 
on  a  njiecialtij^  fraud  or  duress  be  pleaded,  the  plaintiff  may 
reply  that  it  was  duly  or  freely  obtained, (//)  or  he  denies  the 
plea  of  infancy,(y)  or  to  a  plea  of  usury,  gaming,  Sec.  traverses 
the  illegality  of  the  contract  ;(r)  and  replications  to  a  plea  of 
tender,  resemble  those  in  assum/isit  ;(.s)  and  to  a  plea  of  sct- 
oflf  to  debt  on  bond,  the  replication  may  either  deny  the  sub- 
ject matter  of  the  defendant's  set-off,  or  allege  that  more  was 
due  on  the  bond  than  the  sum  mentioned  in  the  plea.(?)  The 
only  replication  to  a  plea  of  solvit  ad  or  fiost  diem  is  a  denial  of 
the  payment  ;(w)  and  if  to  debt  on  an  annuity  bond  or  deed,  it 
be  pleaded  that  no  memorial  was  enrolled  containing  the  names 
of  the  witnesses,  Sec.  the  replication  sets  out  the  memorial  ver- 
batim, and  states  that  it  was  duly  enrolled. (xO  If  to  debt  on 
an  arbitration  bond,  the  defendant  pleads  that  no  award  was 
made,  the  replication  must  set  forth  the  whole  award,  though 
this  is  not  necessary  in  debt  on  an  award, (w)  and  a  breach  of 
*■  556  the  award  must  also  be  assigned. (r)  *If  to  debt  on  a  bail- 
bond  by  the  assignee  of  the  sheriff,  the  defendant  has  pleaded 
ease  and  favour,  the  plaintiff  should  reply  staling  that  it  was 
duly  executed,  and  deny  the  case  and  favour  ;(?/)  or  if  the 
action  be  in  the  name  of  the  sh.eriff,  and  the  bond  is  not  set 
forth  in  the  plea,  the  plaintiff  should  pray  that  the  bond  may- 
be enrolled,  and  then  set  it  out,  and  state  that  he  was  sheriff, 
Sec.  and  the  arrest  of  the  defendant,  and  that  the  bond  was 
made  to    the  plaintiff  as  sheriff,  and  traverse  the  ease  and  fa- 


(«)  Post,  vol.  2.  607.  (;/)  Post,  vol.  2.  61 S. 

(o)  See  the  instances,  post,  vol.  2.         (v)  Post,  vol.  2.  618. 
COS.     3  Wentvv.  Index,  XX.  kc.  (w)  Post,  vol.  2.  619.     2  Sauiid.  02. 

(  p)    Cora.  Dig.  Pleader,  2  W.  19,  b.  n.  5. 
20.     Post,  vol.  2.  615.  (x)    1  Saund.  103.   n.  1.  n.   4.    317. 

((/)  Po.st,  vol.2.  616.  Post,  vol.  2.  620. 

(r)   Post,  vol,  2.  616.  (?/)    Post,    vol.  2.   620.      1  Saund. 

(,9)  Post,  vol.  2.  616,  617.  159.    Com.  Disj.  Pleader,  2W.  25. 

(0  3  T.  R.  65.     Post,  vol.  2.  C17. 


OT  THE  SEVERAL  REPLICATIONS.  555 

\our.(r)  If  to  debt  on  a  bastardy  or  indemnity  bond,  the  In  debt. 
defendant  plead  non  damvijicatus^  the  plaintiff  must  reply  spe- 
cially, setting  forth  how  he  was  damnified;  (a)  and  to  a  plea 
of  performance  to  debt  on  a  bond  to  account  or  perform  cove- 
nauts  mentioned  in  the  condition,  or  in  another  deed,  the  breach 
must  be  stated,  and  these  replications  should  conclude  v/ith  a 
verification.(i)  The  statute  8  and  9  Wm.  III.  c.  11.  s.  8- 
enables  the  plaintiff,  and  in  muny  cases  makes  it  necessary,  to 
assii^n  in  the  replication  several  breaches  of  the  condition, (c) 
and  the  assignment  of  a  breach  was  necessary  at  common  law, 
where  the  delendint  pleaded  performance,  thoutj^h  it  was  other- 
wise when  he  pleaded  a  collateral  matter  as  a  release. (</)  To 
a  plea  of  mil  tiel  record  in  debt  on  arecoid,  the  replication  must 
state  that  there  is  such  record,  and  conclude  proitt  j:atet  per 
recordum,  with  a  prayer  that  it  may  be  inspected,  Scc.(£') 
*And  if  to  debt  on  a  recogiusance   of  bail,    the  defendant  has  *•   557 

pleaded  no  ca.  .so.  against  the  principal,  the  replication  must 
state  the  ca.  sa.  and  conclude  with  a  verification, (/")  and  if  the 
defendant  has  pleaded  the  death  of  the  principal,  before  the 
return  of  a  ca.  sa.  the  writ  and  return  must  be  replied,  and  it 
must  be  averred  that  the  principal  was  then  living. (.§•)  Where 
to  debt  on  statutes.,  the  defend^Jit  has  pleaded  a  piior  itction  de- 
pending, or  a  compromise  by  rule  of  court.  Sec.  the  plaintiff 
may  traverse  the  fact,  or  reply  fier  fraudcm.Qi) 

In  COVENANT  as  the  declaration  states  the  breach,  and  the   jn  covenant. 
pleas  usually  deny  them,  and  conclude  to  the  country,  a  special 
replication  seldom  occurs. (/) 

In  actions  whether  of  assumfidt.,  debt  or  covenant,  against  in  action* 
an  EXECUTOR  OR  ADMINISTRATOR,  to  the  plea  of  ne  unr/ucs  "f^iigyf  f^^'' 


(r)  1  Lutw.  G80.  685.     2  Saund.  CO.         (e)    Com.    Dig.  Pleader,  2  W.  13. 
a.  n.  3.  Post,  vol.  2.  624,  625. 

(a)  Post,  vol.  2.  621.  (/)    2  T.   R.    576.       Post,  vol.  2. 

\b)  Post,  vol.  2.  622,  623.    2  Burr.     625. 
7"4.     iSaundlOl,  102.  (  §■)  Post,  vol.  2.  626. 

(c)   Post,  vol.  2.623.     1  Saund.  58.         (/;)    Post,  vol.  2.  627. 
n.  1.     2  Saund.   187.  h.  n.  2.  (/)     Sec  the  precedents,  post,  vol. 

((/)  2  Burr.  Oii.  2.  627,  62S.       S  Weutw.  Index,  ClI. 

to  CXLIV. 

Vor,.  L  r  51  3 


557 


OF  THE  SEVERAL  REPLICATIONS. 


Ill  actions 
a  chains t    exe- 
cutors, CJc. 


^'  558 


*  559 


executor,  the  plaintiff  may  reassert  tho  fiict,(^')  and  to  the  plea 
oi plane  adTidnintravit.  if  untrue,  the  plaintiff  should  reply  that  at 
the  time  of  the  exhibiting  thebiil,  or  the  commencement  of  the 
suit,  the  defendant  had  assets,(/^)  or  if  assets  have  come  to  his 
hands  since  the  commencement  of  the  suit  and  before  the 
plea,(/)  or  if  at  the  time  the  defendant  first  had  notice  of  the 
action  he  hud  assets,  but  unduly  administered  them  afterwards, 
these  facts  maybe  replied  specially  :(m)  so  if  the  plea  was /?/fnp 
adiiiirnstravit  except  a  sum  not  sufficient  to  satisfy  bonds  or  judg- 
ments, *outstanding,  the  plaintiff  may  reply  that  the  defendant 
had  assets  ultra^in)  or  that  the  judgments  mentioned  in  the 
plea  were  obtained  by  fraud  and  covin,(o)  or  suffered  fraudu- 
lently for  more  than  was  due,(/i)  or  that  the  bond  pleaded  as 
an  outstanding  debt  is  satisfied,  and  kept  on  foot  by  fraud  ; 
but  if  the  plaintiff  cannot  deny  the  plea  of  Jilene  administra- 
vit,  he  should  pray  judgment  of  assets  quando  acciderint,  ei- 
ther generally  qr  specially  ;  as,  "  which  after  satisfying  the 
"  monies  due  on  the  outstanding  judgments,  bonds,  &c.  men- 
♦'  tioned  in  the  defendant's  plea  shall  come  to  the  defendant's 
f'  hands  as  executor,  &c.  to  be  administered,"(r)  or  if  /dene  ad- 
7ninistravit  pr<eter  a  sum  acknowledged  to  be  in  hand  has  been 
pleaded,  the  plaintiff  should  pray  and  take  judgment  pro  tanto^ 
gnd  of  assets  quando  accideri7it  as  to  the  residue,  in  case  the 
plea  be  true.  If  the  defendant  has  pleaded  the  general  is- 
sue, or  any  other  plea  denying  the  plaintiff's  right  of  action, 
he  must  proceed  to  trial  thereon,  and  on  the  prayer  of  judg- 
ment of  assets,  quando^  kc.  there  is  a  stay  of  judgment,  till 
the  determination  of  the  issue  ;  but  where  the  debt  has  not 
been  denied,  and  the  defendant  has  merely  pleaded  plcne  ad- 
mims(ra-i<ii  or  other  plea  on  which  the  plaintiff  prays  judgment 
of  assets  quando  acciderint.^  there  should  be  an  entry  of  that  judg- 
ment immediately,  and  an  award  of  an  inquiry  to  ascertain  the 
amount  of  the  plaintiff's  demand,  unless  the  defendant  has  *by 


(.;')  Post,  vol.  2.  608. 
(h)  Post,  vol.  2.  608. 
(0    Post,  vol.  2.  610. 
3  Went w.  221. 

(in)  Post,  vol.  2.  609. 
\n)  Post,  vol.  2.  609. 


(o)  Post,  vol.  2.  610. 

{p)  5  T.  R.  82.  Post,  vol.  2.  611. 
6  T.  U.  10.  \q)  Post,  vol.  2.  612.  Com.  Dig. 
Pleader,  2  U.  9. 

(r)  Com.  Dig.  Pleader,  2  D.  9.-r 
Post,  vol.2.  512,  513. 


OV  THE  SEVERAL  REPLICATIONS.  559 

cognovit  confessed  the  same  in  order  to  suve  the  expense  of  an       ^n   actimis 

agi-.inat    exe- 
inquuy.(s)  cu.'ors,  kc 

In  debt,  against  an  heir  on  the  bond  of  his  ancestor,  to  a 
plea  of  parol  demurrer,  the  plaintiff  may  deny  or  confess  the 
plea,(/)  and  to  a  plea  of  rien  fter  descent  the  plaintiff  muy  reply 
either  that  the  defendant  had  such  assets  at  the  time  of  thb 
commencement  of  the  suit,(«)  or  that  he  had  them  between 
that  time  and  the  death  of  his  ancestor, '^x-)  or  if  rzVw?  firatcr  a 
reversion  be  pleaded,  the  plaiutift' may  lake  judgmer.t,  &.c.  cw/n 
accident. (^iv) 

In  an  action  on  the  case  for  a  libel  or  verbal  slander,  the  jn  ca&e. 
general  replication  ds  injuria  is  sufficient  to  a  plea  of  justifica- 
tion when  untrue>(x)  unless  the  plea  allege  that  the  plaintiff 
oommitted  perjury  in  a  court  of  record,  when  this  general  re- 
plication would  be  improper,  because  it  would  refer  the  matter 
of  record  to  be  tried  by  the  jury  ;(y)  so  if  in  an  action  on  the 
case  for  slander  of  title,  if  the  defendant  has  pleaded  that  he 
spoke  them  in  defence  of  his  own  title,  the  repUcation  de  inju- 
ria is  incorrect,  though  good  after  verdict. (-)  Bus  if  the  plea 
be  true,  the  plaintiff  muy  reply,  that  after  the  commission  of 
the  crime-,  and  before  the  speaking,  he  wi!S  pardoned,  cr)  To 
a  plea  by  a  sheriff  in  an  action  for  an  escape,  that  the  escape 
was  negligent,  *and  that  the  party  was  retaken   on  fresh   suit,  *•    5gQ 

the  plaintiff  may  reply,  that  the  escape  was  voluntary,  or  allege 
that  the  party  wis  not  after  the  retaking  kept  in  safe  custo- 
dy ;(a)  and  if  an  accord  and  satisfaction,  or  the  statute  of  limi- 
tations has  been  pleaded  in  this  action,  or  in  trover,  the  repli- 
cations will  resemble  those  in  assumfidt Xb) 

In  UEPLKvix  the  plaintiff  cannot  reply  de  injuria  ;(c)  but  by     Pleas  in  bar 

. ,  ^  A     yi  1  />     1  •  1        •  I    1  r  ..  ■       J''  ret/levin. 

the  Statute  4  jinn.  c.    16.  he  may  m  general,  with  leave  01  tne 


(»)  Post,  vol.   2.  612,013,01)-.  (j/)   2  Leon.  81.    102.     Com.   Dig. 

(0   Post,  vol.    2.   617.     Com.    Dig.  Pleader,  V.  2^. 

Pleader,  2  E.  4.  (r)  Cio.  Jac.  163,  164. 

(»<)  Post,  vol.    2.617.     Com.   Di.ij.  (rt)  Dnn.  lG.3.     Moore,  S6.-.  872. 

Pleader,  2  E.  4.  (a)  1    li.  and  P.  413.    416.417.     I 

iy)  Post,   vol.  2.  617.  n.   (j-),  6!S.  Sanud.  55.  n.  1.    2  T.  R.  127.  5  East, 

Com.  Dig.  Pleiider,  2  li.  4.     5   Mod .  293. 

122,  12.3.  (&)  Ante,  554. 

(w)  Com.  Dig.  Plea-.ler,  E.  4,  5.  (c)    Fineh  Law,   596.     I  B.  and  P. 

(x)  I   Saimd.  244,  n.  7.     Com.  Dig.  76.     2  Saund.  234.  c.  n.  .51, 
Pleader,  2  L.  4.    Post,  vol.  2.  f-2S, 


560  OF  THE  SEVERAL  REPLICATIONS. 

Pleas  in  bar   couiL,  plead  several  filcas  in  bar.      If  the  defendant  has  plead- 

in  rtpkvin,  \        ,  ■    •       ,-     ,  •  t  r       ^     ■  r  ... 

^  ed  cejiit  in  alio  loco,  with  an  avowry  ot  cognisance  lor  u  return, 

the  plaintiff  cannot  traverse  any  matters  in  the  avowry  or  cog- 
nisance, but  must  take  issue  on  the  traverse  of  the  place,  or 
amend  his  declaration  ;  but  if  the  defendant  had  them  in  th6 
place  mentioned  in  the  declaration,  though  he  took  them  else- 
where, the  plaintifl"  may  safely  take  issue  ;(e)  and  to  any  cog- 
nisance, the  plaintiff  may  traverse  the  defendant's  having  been 
bailiff,  concluding  to  the  country .(./) 

To  an   avowry  or  cognisance   for  7-^72^,  the  plaintiff  may  in 
one   plea    in   bar,  deny  the  demise  of  tenancy^ .?)  and  in  an- 
otlier,  that  any  part  of  the  rent   was  in   arrear>(A)  concliiuing 
*    561  each  to  the  country  ;(/)  or  he  may  plead  *payment  of  rert   to 

a  ground  landlord,  or  of  land  or  property  lax,  though  lie  can- 
not avail  himself  of  any  otiier  set-off  ;Ci)  eviction  is  also  a  good 
plea  in  bar.(7)  But  since  the  statute  11  Geo.  II.  c.  19.  when 
the  defendant  avails  himself  of  the  general  avowry,  the  piain- 
tifl'  cannot  in  teiius  plead  nil  habuit  in  tenemenliv.,  though  he 
may  traverse  the  tenancy,  which  if  the  avowant  claims  under  a 
derivative  title  and  has  never  received  rent,  will  put  such  title 
in  issue  ;(X:)  so  where  the  plaintiff  admits  the  tenancy  and  that 
part  of  the  rent  was  in  arrear,  he  may  plead  ricn  en  arrear  as 
to  part,  and  a  tender  of  the  residue. (/) 

To  an  avowry  or  cognisance  by  a  freeholder,  or  a  copyhold- 
er or  his  tenant,  for  a  distress  damage-feasant ^  the  plaintift' 
may  deny  his  title,  and  conclude  to  the  country,  or  state  his 
own  title  specially,  and  conclude  with  a  traverse,  though  the 
former  seems  preferable  :(w)  so  the  plaintiff  may  in  his  plea  in 
Ijar,  slate    a  demise  to  him  from  the  defendant, (''^  or  a  right 


(«)  1  Sauiul.  347.  n.  1.     Post,  vol.  2  (?)  4  T.  R.  511.      Dong.  624,  6'25. 

510.  n.  {g).     Ast.  Ent.  475.  and  as   to  Post,  vol.  2.  631. 

the  pleas  in   bar    connected  witii  tlie  ( /)  Post,  vol.  2.  633. 

[>J(ice,  see  I  Siiiind.  347.  n.  1.     Com.  {k)  2  Wils.  208.      5  T.    U.   4.      2 

Dig.  Plender,  3  K.  II  to  29.  Saiind.  284.  d. 

(/■)Post,  vol.  2.  631.     Ld.  R;;yni.  (Z)    Post,  vol.  2.  632.      Clift.   Ent. 

641.     Com.  Dig.  Pleader,  K.  14.  646.     Com.  Dig.  Pleader,  3  K.  20. 

(§yPost,  vol.  2.  6.30.  (6).  Com.  Dig.  (;h)    Post,  vol.  2.   634.      2  Sauud. 

Pleader,  3  K.  10.  20.  b.  206.  a.    n.   22.      1  Saund.  103.  b.       1 

(A)  Post,  vol.    2.   631.     Com.  Dig-.  Co.  63,  64. 

Pleader,  o  K.  16.  20.  {n)  Post,  vol.2.  634 

{i)     Lil.    R:n  m.     641.     1    Saand. 
1«3.  h 


OF  THE  SEVERAL  REPLICATIONS.  5.61 

of  common  in  the  lonis  in  quo,  either  as  a  freeholder,  or  copy-  Pleas  in  hitr 

,  ^  .,  •  -f  X  r       111        ^  ■  \   ''*  replevin. 

holder,  or  as  his  tenant, (o)  prescribmg,  it  by  a  irceholder;(/?j 

or  if  by  a  copyholder,  alle^ini;  a  custom  within  the  manor, 
either  for  all  copyholders  within  the  manor,  or  for  the  tenant 
of  the  defendant's  land  in  particular  ;(y)  or  where  a  copyholder 
claims  common  *or  other  profit  in  the  soil  of  a  stran.;:^er,  which  *•  5G2 
is  not  parcel  of  the  manor,  he  must  prescribe  in  the  name  of 
the  lord,  viz.  that  the  lord  of  the  manor  and  his  ancestors,  and 
all  those  whose  estate  he  hath,  have  immcmorially  had  com- 
mon, Ecc.  in  the  locus  in  (jxio  for  themselves  and  their  customary 
tenants  ;(r)  or  the  plaintiff  may  plead  in  bar  a  right  of  way  ;(s) 
or  in  excuse  for  tlie  cattle  having  been  in  the  locus  in  rjuo,  he 
may  plead  defect  of  fences,  which  the  defendant  ought  to  have 
repaired  ;(/)  so  admitting  that  the  cattle  trespassed  in  the 
locus  in  cjiio,  the  plaintiff"  may  traverse  that  the  distress  was 
whilst  the  cattle  were  damaf^e -feasant  ;(u)  or  may  plead  a  ten- 
der before  the  impounding  ;{v)  and  it  should  seem  that  in  the 
case  of  a  distress  damagc-fea-sant,  the  plaintiff"  might  plead  in 
bar,  that  the  avowant,  after  making  the  distress,  used  the  cat- 
tle, or  otherwise  became  a  trespasser  ab  i7iitio.{w) 

In  trespass  to  persons,  if  the  defendant  has  pleaded  son  assault  TiepUcati/ons 
demesne,  and  self-defence,  or  defence  of  a  father,  mother,  son, 
&c.  or  any  other  plea  merely  in  excuse  of  an  injury  to  the 
person,  and  not  a  justification  under  process  of  a  court  of  re- 
cord, the  replication  de  injuria  or  de  son  tort  demesne,  is  in 
general  proper  if  the  plea  be  untrue  ;(x)  and  this  will  suffice, 
though  title  be  *alleged  as  inducement  ;  as  if  to  a  declaration  ^-  553 
for  an  assault  and  battery,  the  defendant  plead  that  he  was  pos- 


(0)  Post,  vol.  2.  C38.      Com.   Dig.  (»)  3  Esj).   Rep.  95. 

Pleader,  3  K.  24.  \v)  Post,  vol.   2.   C39.     Coin.  Dig. 

ip)  III.  ibid.     Com.  Dig.   Pleader,  Pleader,  3  K.  2j.      Bull.   X.   P.   GO. 

3  K.  24.     1  Saund.  34S.  n.  10.  Liitw.  1596. 

(ry)  Id.  ibid.     I  Saund.  348.  n.  8.  11.  (-a-)  Com.   Dig.    Pleader,  3  K.  20. 

('■)  1  Saund  349.  n.  11.    Com.  Dig.  Eac.    Abr.  Trespass,  B.  sed  quxre ; 

Pkiider,  3  K.  24.  aliter  in    the   case   of  a  disti-ess  for 

(s)  Com.   Dig.    Pleader,    3  K.  25.  rent,  see  II  Geo.  II.  c.  19. 

Po.st,  vol.  2.  570  to  srg.  (x)  Post,  vol.    2.  C42.     Com.  Dig. 

(/)  Post,    vol.   2.   635   to  638.      2  Pleader,    F.   18.       Cro.    Jac.  224.— 

Saund.   284.  c.    285.  u.  4.    389.  n.  7.  Yelv.  157.     Willes,  5^.   131.       1  B.  k 

8  U.  Bl.  S-17.  P.  8G. 


5^3  OF  THE  SEVERAL  REPLICATIONS. 

fn  trecpaas.  sessed  (or  p.ccordint^  to  some  cases,  seised  in  fee)(.r)  of  a 
close,  and  had  cut  his  corn,  und  that  the  Jilaintifi"  came  to  take 
it  away,  and  the  defendant  in  defence  thereof,  assaulted  the 
plaintiff,  de  son  tort  is  a  good  replication. (;/)  But  if  the  plea 
be  true,  and  the  plaintiff  did  in  fact  comnut  what  in  point  of 
law  amounted  to  the  first  assault,  the  plaintiff  must  reply  spe- 
cially ;  as  if  the  plaintiff  did  in  fact  make  the  first  assault  in 
defence  of  his  father,  son,  8tc.  or  to  turn  the  defendant  out  of 
his  house,  whereupon  the  defendant  assaulted  and  beat  the 
plaintiff,  this  answer  to  the  plea  must  be  replied  specially  ;(z) 
jind  it  is  said  that  if  the  defendant's  battery  was  outrageous,  or 
more  than  was  necessary  for  self-defence,  that  mailer  should 
be  so  replied. (c)  bo  if  there  be  only  one  count  in  the  decla- 
ration, and  the  defendant  has  pleaded  son  assault,  and  there 
fcave  been  two  distinct  assaults,  one  excusable  and  the  other 
BOt,  the  plaintiff  should  not  reply,  but  should  new  assign 
another  assault ;(/;)  but  if  there  be  several  counts  in  tiie  de- 
claration, equal  to  the  number  of  assaults,  this  would  be  un- 
necessary and  improper.(c)  So  if  the  defendant  has  pleaded 
violtiter  manus  vnfiosuit,  in  defence   of  the   possession   of  his 

*  564  close,  *the  plaintiff,  if  he  claim  a  i-ight  of  way,  must  reply  it 
specially.(£/)  And  where  the  justification  is  under  a  writ, 
warrant,  or  other  process  of  a  court  of  record,  the  plaintiff 
cannot  reply  de  injuria  generally  putting  the  whole  of  the  plea 
in  issue, (e)  but  must,  according  to  the  facts  of  each  particu- 
lar case,  either  deny  the  issuing  of  the  writ,  or  the  making  of 
the  warrant,(/)  or  protest  the  writ  or  warrant,  and  reply  de 
injuria,  as  to  the  residue  ;(;§■)  or  if  the  parties  have  been 
guilty  of  any   illegal  conduct,  as  undue  violence,  or  an  impri- 


(.r)  Post,  5G4.  n.  (  /).     Sed  qusci-e,  if  not  sufficient,  to    reply  de  injuria. 

see  Willes,  100,  lOK  Gilb.  C.  P.  154.     8  T.  R.  81. 

{y)  Cora.  Dig.    Pleader,  F.  21.  id.         {b)  Post,    vol.   2.    653.       1  Saund, 

as.     'iSiiund.  295.  b.  n.  I.  299.  ri.  6. 

(:)   Post,  vol.  2.  642.      Carth.  280.         (c)  Id.  ibid. 
I  Salk.  407.     Skin.   387.     And  see   2         {d)  Post,  vol.  2.  643. 
Bl.  Rep.  n6;v  (e)  6  Co.  67.  a.     Com.  Dig.  Plead- 

(a)  Semble  Skin.  387.     Willes,  17.  er,  F.  19,  20. 
1  Selw)  n,  N.  P.  29.  n.  9.    Sed  quicre,        (/)  1  Saund.  299.  b. 

(^)  Post,  vol.  2.  644. 


OF  THE  SEVERAL  REPLICATIONS.  5G4 

sonmcnt  before  the  issuirii^.  or  after  the  return  of  the  writ,  the  In  treaptm. 
plainiifl"  should  new  assi.^n.(A) 

In  trespass  to  fiersonal  property,  where  the  defendant  has  in 
his  plea  merely  justified  in  his  own  rights  the  chasing  cuttle, 
or  removing  personal  property  from  a  close,  Sec.  whereof  he 
was  possessed^  the  plaintiff  may  reply,  de  injuria  generally  ;(i) 
and  it  appears  to  have  been  considered  that  this  repiication 
■would  also  suffice,  where,  in  a  similar  plea,  it  is  stated  that 
the  defendant  was  sei^.ed  in  fee.(y)  But  if  the  defendant  has 
justified  as  servant  of  another,(^)  or  under  a  distre^s  for  rent,(/) 
or  the  taking  and  im/ioimding^  and  not  merely  the  cha-^mg  of 
cattle,  Scc.(ffi)  this  replication  will  not  suffice.  And  in  c-«»ses  - 
where  this  general  replication  might  not  be  bad  on  demurrer, 
*it  may,  nevertheless,  be  advisable,  and  in  some  cases  necessary  ^    ^ga- 

to  reply  specially,  as  if  there  be  two  tenants  in  common,  and 
one  bring  trespass  against  the  other  for  taking  his  cattle,  to 
which  the  defendant  pleads  that  he  took  them  du ma gi; -feasant  ; 
in  this  case  it  seems  that  the  pi.  intiff  ought  to  reply  specially, 
that  he  was  teridnt  in  common  with  the  defendant,  and  so  shew 
that  he  was  not  a  trespasser. (w)  If  the  justification  be  under 
a  Jieri  facias.,  or  other  process,  the  replication  must  not  be  de 
injuria  generally,  but  must  slate  the  pcirticular  answer  to  the 
plea  as  in  the  case  of  trespass  to  persons. (/O  Where  the  an- 
swer to  the  plea  confesses  and  avoids  it,  the  replication  should 
be  special  ;  thus  the  plaintiff  ought  to  reply  his  right  of  com- 
mon, or  defect  of  fences,  to  a  plea  of  a  distress  daviagefea- 
nani  ;(o)  or  he  may  shew  that  the  plaintiff  converted  such  dis-» 
tress  to  his  own  use  or  abused  it.(yi)  •■^•'j! 

In  trespass  to  real  firofiertij^  the  plaintiff  may  to  the  plea  of 
liberum  tenementum  reply  according  to  the   facts,  in  either  of 


{h)    Post,    vol.  2.  654.      I  .Saiind.  {k)  Willes,  99.     1  B.  k  P.  80. 

299.  II.  6.     Lutw.    1436.     Skin.   3Sr.  (/)  Willes,  S2. 

Com.   Dig.    Plpader,  3  M.   16.     2  T.  (w)  Willes,  101,    102.      Cro.  ^^., 

B.  172.  2-2;7. 

(0  1  East,  212.     Post,  vol.  2.  641.  (m)  1  East,  218. 

(  /)  1  East,  212.    Yclv.  15".    Lulw.  \n)  Ante,  564. 

«21.       1    Biowul.   215.       Coiii.    Dig.  (o)  Post,  vol.2.  646,  64r. 

Pleader,  F.  21.     2  Saund.  295.  b.  n.  {p)  ^  Wils.  26.    1  Salk.  221.    Qr» 

J.     Sed  vide  Willes,  103.     1  B.  bi  P.  Jac.  I47,     Post,  vol.  2.  6+6. 
80.     12  Mod.  5S2.  and  post. 


/ 


565  OF  THE  SEVERAL  RtPLICATIONS. 

tn  trespass,  four  ways.  1st.  If  the  name  or  iibuttals- of  the  close  have  been 
so  minutely  stated  in  the  declaration  that  there  can  be  no  ques- 
tion what  close  was  alluded  to,  and  the  plaintiff's  title  is  in- 
consistent with  the  defendant's,  as  if  the  plaintiff"  insist  that 
the  locus  in  quo  is  his  freehold  or  the  freehold  of  another  per- 
son, then  the  replication  should  deny  the  defendant's  title,  by 
replying  that  it  is  the  plaintiff's  or  the  third  person's  freehold, 
and  not  the  defendant's,  and  should  conclude  to  the  country,  or 

'^'  566  the  *replication  may  merely  deny  that  the  close  is  the  defend- 
ant's freehold,  which  latter  mode  is  proper  where  the  plaintiff 
is  not  entitled  to  the  freehold  ;(/0  or,  2{lly.  If  the  plaintiff  de- 
rive title  under  the  defendant,  then  he  must  not  traverse  his 
plea,  but  confessing  the  defendant's  title,  must  reply  the  lease 
or  some  other  title  under  him,  concluding  with  a  verification  \{q) 
or,  3dly.  If  the  plaintiff  has  a  middle  case,  and  neither  derives 
a  title  under  the  defendant,  nor  has  a  title  inconsistent  with  the 
defendant's,  he  may  reply  that  before  the  defendant  had  any 
thing  in  the  premises  another  person  was  seised,  and  made  a 
lease  for  years  to  a  person,  under  whom  the  plaintiff'  claims, 
stating  his  derivative  title,  without  either  expressly  confessing 
or  denying  the  defendant's  plea,  but  concluding  with  a  verifi- 
cation ;(r)  or,  4thly.  If  the  declaration  be  general,  without 
naming  the  locits  in  quo,  or  the  abuttals,  and  there  be  any  rea- 
son to  apprehend  that  the  defendant  has  any  land  in  the  same 
parish,  the  pluinliflf  must  new  assign,  setting  out  the  locus  iti 
quo  with  more  particularity. C'^) 

If  the  defendant  has  justified  as  servant  or  bailiff"  of  a  free- 
holder or  termor,  the  plainiiff  cannot  traverse  the  defendant's 
authority,  because  he  would  leave  unanswered  the  other  parts 
of  the  plea,  and  thereby  admit  that  another  person  is  entitled 
to  the    possession  ;  but  if  both   parties  claim  under  the  same 

^  "ifi?  person,  the  command  is  traversable. (/)  If  the  defendant,  *in 
his  plea,  has  relied  on  a  possessory  title  derived  fram  the  ««'«?» 


(/;)  Willcs,  225.     Post,  vol.  2.  648.  Post,    vol.    2,    656.   ace.      Dyer,  23. 

(y)  Willcs,  225.     Posi,  vol.  2.  64S.  cont. 

(r)  Willcs,  225,  226.  (f)  1  East,    245.       Cro.   Car.  58fi. 

(s)  1  Saund.  299.  1).  c.      CoiYi.  Dig.  6  Co.  24.  a.    Salk.  107.    1  Sau'nd.  iii7. 

Pleader,  3  M.  34.     7  T.   R.    335.     2  c.  n.  4. 
Salk.  453.     6  Mod.  119.     Willes,  223. 


OF  THE  SEVERAL  REPLICATIONS.  567 

tn  fee  of  a  stranger,  the  plaintiff  cannot  take  issue  on  the  mat-  la  tretp^ss. 
ter  stated  by  way  of  colour,  but  may  deny  the  demise,  8cc.  to 
the  defendant,  without  shewing  any  title  in  himself ;(«)  or  if 
the  plaintiff  deny  the  title  of  the  party  under  whom  the  colour 
is  given,  he  should  shew  his  own  title,  and  traverse  that  stated 
by  the  defendant  ;(x')  and  if  the  plaintiff  insist  that  the  defend- 
ant's tenancy  has  been  determined  by  a  notice  to  quit,  or  a 
surrender,  or  forfeiture.  Sec.  he  should  reply  that  matter  spe- 
cially.(w)  To  a  plea  of  license,  the  pluintifl"  may  reply  gene- 
rally, that  the  defenddnt  of  his  own  wrong,  and  without  the 
supposed  license,  committed  the  trespasses,  concluding  to  the 
country, (JT)  or  if  the  plaintiff  did  at  any  time  license  the  de- 
fendant to  commit  similar  acts,  then  he  should  reply  a  revo- 
cation, or  new  assign  that  he  brought  his  action  for  other  and 
different  t]'espasses.(2/) 

To  a  plea  of  escape  of  cattle  through  difcct  offences.,  which 
tlie  plaintiff  ought  to  have  repaired,  it  is  said  that  as  the  plea 
contains  mere  matter  of  excuse,  the  plaintiff  may  reply  de  in- 
juria,(.z)  or  he  may  deny  in  particular,  the  obligation  to  repair, 
or  the  defect  of  the  fences,  or  the  defendant's  right  to  put  the 
cattle  in  the  close,  adjoining  the  locus  in  ^uo,  concluding  to 
the  country  ;(c)  but   *he   should    reply  specially,  tiiat  the  de-  ^    trn 

fendant  turned  the  cattle  into  the  hcus  in  quo,  or  that  they  were 
unruly,  and  conclude  with  a  veriiicauon.(<5) 

To  a  plea  claiming  a  rit^ht  of  commoii,  the  plaintiff  cannot 
reply  de  injuria,(c)  but  must  either  deny  the  seisin  in  fee,  or 
other  title  to  the  estate,  as  appurtenant  to  which  the  defendant 
claims  his  right,  or  may  deny  the  right  of  common,  as  stated 
in  the  plea,(c/)  or  that  the  cattle  were  the  defendant's  own  com- 


{n)    2Sti-a.   1238.     Fortas.  378.—  (;)  Wil'.es,  .54.     Raat.  Ent.  6'2I.  a. 

Poi)li.  1,  2.  Com.  Dig.  Pleader,  3  M.  29. 

{v)  Puph.  2.     Com.  Dig.  Pleader,  («)   I  Simiid.    103.   b.      Com.  Dig. 

F.  13.  Pleader,  3  M.  29.     Post,  vol.  2.  651, 

(w)    7T.   R.  431.         1  Lev.    307.  652. 

Post,  vol.  2.667.070,  6ri.  (6)  Post,  vol.  2.  649.     Lutw.  1358, 

(.c)  Post,    vol.2.    649.       1  Saund.  1359.     Com.   Dig.  Pleader,  3  M.  29 

103.  b.                                                   ^  Rast.  Ent.  621.  a. 

0/)  1  Samid.  300.   a       2  Saiind.  5.  (c)   8  Co.  67.  a.    Willes,  101. 

end  of  note  3.  (d)  Post,  vol.  2.  650,  651. 

Vol.  I.  r  52  1 


568  OF  THE  SEVERAL  REPLlCATIOiNS. 

In  irespass.  moiiable  cattle,  levatHand  covcliant  upon  the  prciiuses,(e)  con- 
cluding to  the  country,  and  not  with  a  formal  truverbc  ;(/) 
though  it  is  s;.u(l  that  in  the  latter  case,  where  the  defendant 
has  turned  on  his  own  commonable  cattle,  as  well  us  other  cat- 
tle, the  plaintiff  should  new  assign,  stating  that  he  brought  his 
action  for  depasturing  the  common  with  other  cattle,  and  ought 
not  to  traverse  the  Icvancy  and  couchaiicij.{  g)  The  plaintift' 
may  also  reply  an  approvement.(//) 

If  a  public  or  piivate  way  be  pleaded,  the  plaintiff  may 
deny  the  way,  and  conclude  to  the  country,  and  he  may  also 
new  assign  ;(z)  or  to  a  plea  of  a  private  way,  the  defendant's 
title  may  be  denied, (X)  and  the  plainiifi'  may-  under  such  re- 
plication, give  in  evidence  an  order  of  justices  on  an  inclosure 

*  569  ^ct,  and   award  thereon,  whereby  the    *pul)lic  or  private  way 

has  been  stopped  ;(/)  but  where  the  plaintiff  cannot  deny  the 
plea,  and  only  insists  that  the  defendant  trespassed  out  of  the 
wa)',  or  was  guilty  of  unnecessary  damage  in  removing  an  ob- 
struction, or  actually  converted  the  materials  to  his  own  use, 
in  order  to  save  unnecessary  expense,  the  plaintiff"  should  not 
deny  the  right  of  way,  but  should  merely  new  assign  extra 
vunn,  &CC.  the  replication  to  pleas  justifying  a  trespass  to 
real  property,  under  process  of  courts  of  record,  are  siinilar 
to  those  in  trespass  to  persons,  in  which  we  have  seen  that 
the  plaintiff  cannot,  in  general,  put  in  issue  the  whole  of  the 
matters  in  the  plea,  by  replying  de  injuriaXm) 

The  replications  to  pleas  in  trespass  of  matters  in  dischai'ge., 
in  general  resemble  those  in  assum/isit  ;  thus,  if  a  release  be 
pleaded,  the  replication  may  be  non  est  factum^  or  that  it  was 
obtained  by  fraud, (?/)  or  to  a  pica  of  accord  and  satisfaction,  the 
plaintiff  may  deny  the  accord,  or  state  that  it  was  for  another 
trespass,  with  a  traverse  of  the  acceptance  in  satisfaction  of 
the  trespass  complained  of,  or  lie  may  allege  that  the  defend- 


((')  1  niiiT.  3-20.     Wilies,  100.  n.  c.  {i)  1  Saund.  103.  b.       Post,   vol.  '2. 

Bull.  N.  P.  93.    8  Co.  6r.  b.  650. 

(/)  1  Saund.  103.  b.     Pest,  vol.2.  {k)  Post,  vol.2.  657. 

6fll..  (0  1  East,    Gk      Selwyn,  N.    P. 

(i--)  1  Sauud.  340,  (1.  11.50. 

(Ji)  Post,  vol. 'J.  651.  (m)  Ante,    564. 

(«)  Com.  Dig.  Pleader,  3  M.  \2. 


TO  A  PLEA  CONCLUDING  TO  THE  COUNTRY,  See.  569 

ant  was   guilty   after  the  accord  ;(o)  and  to  a  plea  of  a  distress  la  tresjyas%. 

for  the  same  trespass,  he  may  reply  that  the  cattle  died  in  the 

pound, (/O  or  to  a  plea  of  tender,  that  no  tender  was  made,  or 

that  it  was  insufhcient  ;(</)  and  to   a  plea  of  the  statute  of  *li-  *    570 

mitations,  the   plaintiff  may  reply  a  writ  or  any  other  matter, 

of  which  he  could  avail  himself  in  the  action  oi  atisuuijisi!.{r) 


II.  OF  THE  FORMS  Ji.YD  PARTS  OF  liEPLICJlTIO.YS. 

A  replication  is  usually  entitled  in  the  court.,  and  of  the  Title,  (s'c 
term  of  which  it  is  pleaded,  and  the  Tiamen  of  the  Jiluintiff  and 
dtjlndunt  are  stated  in  the  margm  thus  :  '■'■  A  B  against  C  D  ;"(«) 
and  where  any  new  matter  is  stated  in  the  replication  which  oc- 
curred pending  the  suit,  as  the  death  of  one  of  several  plain- 
tiff.-) or  dcfendiuUs  between  the  plea  and  replication,  this  should 
be  ■^uggistcdy  and  a  s/ieciol  ivifiarlaiice  may  be  stated  at  the  head 
of  the  replication. (A) 

When  the  plea  concludes  to  the  country.,  the  replication  con-   Tna  p'en  cnn- 

p    ,  .,..,.  ,         [,  .        (indiiip-  to  the 

sists  eitner  ot  the  common  or  special  similiter ;  the  hrst  is,  cuunin/. 
"  and  the  said  plaintiff  dotii  the  like  ;'*  and  the  latter  is  thus, 
*'  and  the  said  plaintiff  as  to  the  said  pleas  of  the  said  defend- 
"  ant  by  him  first  and  secondly  above  pleaded,  and  whereof  he 
"  hath  put  himself  upon  the  country  doth  the  like  ;"  and  the 
plaintiff  must  join  issue  or  demur,  and  cannot  reply  any  new 
matter  when  a  plea  concludes  to  the  country. (c)  If  in  the  si- 
militer there  be  any  mistake  in  the  names,  the  defendant  may 
demur,  but  where  to  an  issue  tendered  by  the  plaintiff,  the  de- 
fendant has  added  the  similiter  by  the  plaintiff's  name,  or  the 
plaintiff  has  joined  it  by  the  defendant's  name,  this  defect 
*will  be  aided  after  verdict,  there  being  an  affirmative  and  ne-         *   571 


(o)   Cora.  Di^.  Plcailer,  3  M.  13.  (r)    Ante,  554. 

ffSfil  <iuaerc  ifilio  j)laiiiliti'ought  not  in  (a)    See   tlie  px'ecedent,  post,  %'ol. 

such  case  to  iie^v  assfffii,  sec  post,  and  '2.  5'.t'2,  5'J3. 

Tol.  2.  6.)'2.  II.  (f).  (6)   See  the    forms,   post,  vol.   2. 

{}))    1  Salk.  248.  592,  593. 

Iq)    'I'ho.  Ent.  304.     Post,   vol.  2.  (c)  Om.  Dig.  Pleader,  M.  1.     Co. 

-il      Cnm.  ]>io;.  Pl«;iUer,  3  M.   36.  Lit.  120.  a.     Hob.  271, 


571  FORMS  AND  PARTS  OF  REPLICATIONS 


To  (I pteaeon-  gutive  before  ;  it  was  once  indeed  held  that  tlie  want  of  a  s/mi- 
clndiiig  to  (he    ,.  .  ,     .  i   i  i         r        '        r  j       i 

country.  f''^^'*  '^^^s  noi  aided   or  amendable   alter  verdict,  and  vherc  m 

the  similiter  the  defendant's  name  was  put  instead  of  the  plain- 
tiff's, the  Chief  Justice  dismissed  the  jurj-,  conceiving  he  had 
no  commission  to  try  the  issue  ;  but  in  a  subsequent  case,  where 
a  similar  mistake  was  made,  the  court  after  trial  of  the  issue, 
relused  to  arrest  the  judgment,  and  at  length  the  similiter  was 
allowed  to  be  inserted  after  verdict,  instead  of  the  &c.  vipon 
*three  grounds  ;  first,  that  it  was  an  omission  of  the  clerk  $ 
secondly,  that  it  was  implied  in  the  £cc.  added  to  the  last  plead- 
ing ;  and  thirdly,  that  by  amending,  the  court  only  made  that 
right  vvb.ich  the  defendant  himself  understood  to  be  so,  by  his 
going  down  to  trial  ;(<")  so  where,  to  a  rejoinder  concluding 
with  a  verification,  the  plaintiff"  instead  of  taking  issue,  and 
concluding  to  the  country,  added  the  similiter^  and  took  down 
the  record  to  trial,  and  the  defendant  obtained  a  verdict,  the  court 
would  not  grant  a  new  trial,  but  amended  the  record. (o') 

To  a  plea  of       We  have  seen  that  a  plea  of  7?ul  (id  record,  concludes  with 

ntdtielrecord,  r  •     i  •        ■       ^  ,         • 

or  stating    a  '-^^  averment  and  prayer  ot  judgment  si  actio,  See.  unless  in  the 
recoru.  ^.^^^^  ^£-  ^   judgment  in  Ireland.{e)     If  the  plea  deny  a  record 

in  the  sajne  court,  the  replication  thereto  should  reassert  the 
existence  of  the  record,  and  conclude  with  a  prayer  that  it  may 
be  viewed  and  ijispected  by  the  court,  and  a  day  is  given  to  the 
^  572  parties  ;(./)  *and  when  the  record  of  another  court  is  denied, 
the  replication  reasserts  it,  and  a  day  is  given  to  the  plaintiff"  to 
bring  it  in.(^)  When  the  defendant  has  pleaded  a  record  of 
the  same  court,  the  replication  denying  it,  concludes  with  a 
verification,  and  a  day  is  given  to  the  parties  to  hear  judg- 
ment ;(/^)  and  where  the  defendant  has  pleaded  a  record  of 
another  court,  the  replication  of  tiul  tiel  record  may  either  con- 
clude  by   giving  the   defendant  a  day  to  bring  it  in,(/)  or  with 


(c)  2Saun(l.  319.  n.  6.     Com.  Dig.  {  g-)   Voi,\.,  \u\. -2.  (,25.     2  Salk.  566. 

Plea<!er,  B.  11,  12.  kc.  3  Bl.  Com.  330, 331. 

{(I)   1  New  Rep.  28.  {h)  Post,    vol.   2.   602.       See   the 

(e)    Ante,   537.     2  Wils.    114.      5  pnictiee,  Tidd's    Prac,  4th  edit.  678, 

East,   473.  679. 

(/)    Post,   vol.   2.  624.      2  LiUw.  (?)   See  iio.st,   vol.  2.  603. 
1514.    Heme,   278.     Barue.s,  336. 


TO  A  SPECIAL  PLEA.  572 

au  averment   and  prayer  of  tlie  debt  and  damages,  6cc  (7)  in   To  a  plea  of 

C  .1  •  -  1      ^  1  1-  •  '"''      '^<^^      '''"' 

the  former  case  the  issue  is  complete  upon  the  rcphcalion,  ,.^,,(/  ^c. 
but  in  the  iatter  there  should  be  u  rejoinder  reasserting  the  ex- 
isteuce  of  the  record, (A-)  and  therefore  the  first  form,  as  be- 
ing the  most  concise,  is  obviously  preferable.  Where  matter 
of  tiict,  as  wcii  as  mutter  of  record,  is  properly  put  in  issue, 
the  replication  may  conclude  to  the  country. (/) 

The  repiicadou   to  a   plea   containing  new  matter,  and  con-  To  a  special 
scquently  concluduig  with   a   veiihcution,  may  be   considered  j,„^  .^y^^/j  ^ 
with  reference,    1st.    I'o   the    commencement;  2dly.  The  body  ;  verification. 
and,  3dly.  The    conchmon.     The   commencement   of  the   re- 
plication in  such  case  contains  a  general  denial  of  the  effect  of 
the  defendant's  plea  ;  the  body  shews  the  ground  on  which  that 
denial  is  founded  ;  and  the  conclusion,  is  either  to  the  country 
or  to  the  record,  if  it  merely  deny  the  plea ;  or  if  the  replica- 
tion contain  new  matter,  it  should  conclude  *with  a  verification  ^    c.nn 
and  a  prayer  that  judgment  may  be  awarded  in  the  plainiifi's 
favour. 

1st.  The  commencement  of  the  replication,  when  matter  of  /  The  com, 
estoppel  is  replied,  after  stating  the  title  of  the  court  and  term 
and  the  names  of  the  parties  in  the  margin,  is  thus  :  "  And  the 
»'  said  plaintiff  suith  that  the  said  defendant  ought  not  to  be 
"  admitted  in  his  said  plea  to  aver  that,"  Sec.  {atating  fully  the 
inatter  alleged  in  the  filea  ivhich  the  refilication  ufterivards  shewi 
the  defendant  is  estopped  from  relying  oji)  "because  he  saith 
that,"  Sec.  (stating  the  matter  of  estop/iel.)(m) 

When  the  replication  denies  or  confesses  and  avoid.^  the  nles, 
it  coftunences  with  an  allegation  technically  termed  the  prcclu- 
di  Tiony  and  which  is  as  follows  :  "  And  the  said  ./f  B,  as  to  the 
*'  said  plea  of  the  said  C  Z),  by  him  secondly  above  pleaded, 
"  says  that  he  the  said  .4  Z?,  by  reason  of  any  thing  by  the  said 
*'  C  D,  in  that  pica  alleged,  ought  not  to  be  barred  from  hav- 
•'  ing  and  maintaining  his  aforesaid  action  thereof  against  the 
''  said  C  D,  because  he  says  that,"  Sec.(?/)     When  the  body   of 


(./)   2  Wils.  U3.     Barnes,    161.  6".     I  Saund.  257.  276.  n.  1.  325.  n.  1. 

(it)   Tidd's  Pi-ac.  4th  edit.  679.  f.  T.  R.  62. 

(/)  Saver,  208.  299.  («)  2  Wils.  42.     If  tlie  plea  was  in 

(/u)  Sec  the  i'orni,  post,  vol.  2.  592.     bar  of  the  further  maintenance  of  the 

o  East,  348.     Willes,  10.     Cartli.  66,     suit,  the  replication  should  be  framed 

accoj'dingly,  4  East,  502,  503 


573  FORMS  AND  PARTS  OF  REPLICATIONS 

/.  The  com-  the  replication  only  contains  an  answer  to  a  part  of  the  plea, 
the  commencement  should  recite  or  specify  that  part  intended  to 
be  answered,  for  should  the  commencement  assume  to  answer 
the  whole  plea,  but  the  body  only  contain  an  answer  to  part,  the 
whole  replication  will  be   insufficient  and  so  vice  versa  ;{o)  in 

■*  574  this  case  the  form  may  *run  thus:  "And  the  said  A  B,  as  to 
"  so  much  of  the  said  plea  of  the  said  C  £),  by  him  secondly 
"  above  pleaded,  as  relates  to  the  said  supposed  recognisance  in 
<'  that  plea  mentioned,  says  that  he  ouj^ht  not  to  be  barred  from 
"  having  or  maintaining  his  aforesaid  action  thereof  against  him 
"  because  he  says  that,"  Sec.  (stating  the  answer  to  such  part  of 
the  plea,  and  luith  the  proper  conclusion  thereto^)  and  the  answer 
to  the  other  part  of  the  plea  commences  as  follows :  "  and  the 
"  said  A  B,  as  to  the  residue  of  the  said  plea  saith  precludi 
«  non,  Sec.  because,"  £<;c.(//)  On  the  other  hand,  when  the 
matter  to  be  replied  is  equally  an  answer  to  several  pleas,  it  is 
proper,  in  order  to  avoid  expense,  to  answer  all  the  pleas  in 
one  rcplication;('/)  and  the  replication  de  injuriis  suis  propriiv 
absque  tali  causa  to  two  several  justifications  by  different  de- 
fendants in  the  same  action,  was  held  sufficient  ;(7")  in  these  cases 
the  commencement  should  apply  to  and  profess  to  answer  all 
the  pleas.  So  where  to  a  plea  of  judgments  outstanding,  the 
the  plaintiff  replies  that  each  is  fraudulent,  he  may  conclude 
with  one  verification. (s) 

//  TItc  body.  With  respect  to  the  body  of  the  replication,  we  have  seen 
that  it  contains  either,  1st.  Matter  of  estoppel;  2dly.  A  denial 
of  the  plea  ;  3dly.  A  confession  and  avoidance  of  it ;  or,  4thly. 
In  the  case  of  an  evasive   plea,  a   new  assignment.     We  will 

*   575         consider  each  of  these  in  the  same  order. 

Ut.  Estoppel.  »is(._  ^55  to  matter  of  estoppel  :{t)  When  it  appears  on 
the  face  of  the  declaration,  the  plaintiff  may  demur  to  the 


{(j)    1  Sfiund.   28.   n.  .3.  377,   3;s.  mary  on   Pleading,  71,  72.     Scd   vide  * 

CiJiu.   Dig.    Pleader,   F.   25.      Lutw,  1  Leon.  13'J.  as  to  a  demurrer. 
i24l.     2  13.   k  P.  427.     Summary  ou         (r)  Ibid.     1  Leon.  124.     Cro.  Eliz.' 

Pleading,  72.     4  East,  503,  5i)4.  139.     1  Sid.  39. 

{p)   1   Saund.  337,   338.    See  the         (s)  1  Saund.  838.  n.  5.  I  Salk.  312, 

forms,  post,   vol.  2.  594.  604.     Lutw.  298. 
241.    Com.  Di"-.  Pleader,  F.  4.  {t)  As  to  estoppels  in  general,  see 

(9)  See  the  form  in  8  Wentw.  5.  Com.  Dig.  Estoppel.    Soraraary,  103, 

1  Leon.  124.     1  Sid.    39.     Yelv.    65.  104. 
Cora.  Dig.  I'leader,  F.  4.  k  24.     Sum- 


TO  A  SPECIAL  PLEA.  575 

plea  ;(?/)  as  in  covenant  by  the  lessor  or  the  assignee  of  the  ve-  //.  The  body. 
version,  if  the  defendant  plead  nil  habidt  or  generally  that  the  "  '  "  ' 
lessor  was  not  seised  in  fee,  without  shewing  that  he  was  seised 
ii{  any  estate  in  the  demised  tenements  ;(t')  but  if  the  matter 
of  estoppel  do  not  appear  from  the  anterior  pleadings,  the  repli- 
cation should  set  it  forth,  and  have  the  proper  commencement 
and  conclusion  ;  as  in  debt  or  aasumfisit  for  rent,  without  set- 
ting forth  the  indenture,  if  before  the  11  Geo.  IL  c.  19.  the  de- 
fendant pleaded  rdl  habuit  in  tenementisy  the  plaintifl"  was  bound 
to  reply  the  indenture,  and  conclude  undc  petit  jiidicium  if  the 
defendant  should  be  admitted  to  plead  the  plea  against  his  own 
acceptance  of  the  lease  by  indenture,  for  if  the  plaintiff"  replied 
that  he  had  a  sufficient  estate  to  make  the  demise,  he  lost  the 
benefit  of  the  estoppel  ;(w)  but  this  is  altered  by  the  above- 
mentioned  statute,  and  now  the  plaintiff"  might  demur  to  such  a 
plea;(x)  so  if  it  be  recited  in  the  condition  of  a  bond,  that  a 
fact  exists,  the  estoppel  on  the  party  executing  it,  may  be  re- 
plied ;(j/)  and  where  the  matter  has  been  tried  upon  a  particu- 
lar issue  in  the  trespass,  and  found  by  the  jury,  such  finding 
may  *be  replied  as  an  estoppel. (;/)     As  a  species  of  estoppel  *   576 

it  may  be  proper  here  to  notice  that  if  in  debt  on  a  bond,  con- 
ditioned for  the  performance  of  covenants,  the  defendant  false- 
ly plead  that  there  Avere  no  covenants  in  the  indenture  on  his 
part,  the  plaintiff"  may  reply  selling  out  the  indenture  contain- 
ing such  covenants  and  demur.(Z) 

The  second  description  of  replication  is  that  which  neither  2dly.  Denial 
concludes  the  defendant  by  matter  of  estoppel,  nor  confesses  *^^*''^  P'*^^- 
and  avoids  the  plea,  but  denies  or  traveises  the  truth  thereof  ci- 


(m)  1  Sauml.  3ii6.n.  4.  2  Stra.  8ir.  (v)  1  Saund.  325.  n.  4.  &  215.  n.   2. 

7  T.  U.  537.     8   T.  R.  487.     Willes,  6  T.  it.  62.     Willes,  9. 

13.  (i/)  3  East,  346.  and  see  the  precc- 

(t')  Id.  il)id.     1  New    Rep.  160.     2  dent  in   trespass   for   mesne  profits, 

Saund.  207,  208.  418.  n.  ).    Post,  vol.  where  to  a  plea  of  title,  tlie  recnverr 

2.  500.  in  ejectment  was  replied.    2  Rich.  C 

(tc)  1  Sauiid   325,  326.  n.  4.  k  276.  P.  444. 

n.  1.    3  K,i^i,  346.    2  Rich.  C.  P.  446.  (z)  1  SaHnd.  316,  317.  318,  319. 

(x)  5  T  R.  4.     1  Vfi]9.  314. 


576 


FORMS  AND  PARTS  OF  REPLICATIONS 


^niv'^Dethr''  ^^"'*  ^"/'"'■^  ^^  "^  wholc^a)     It  will  be  proper  to  consider  the 
<ai  the  plea,      nature  of  these  replications,  under  the  following  heads : 


*  577 


*I.  A  denial  of  the  nvliolc  ])lea,  or  de  injuria^  Ecc. 

C  1st.  When  allo-.ved,  or  not  proper,  or  not  advisable. 
\  2dly.  The  form  of  such  replication. 
II.  A  denial  of  only  part  of  the  plea. 
C  1st.  Of  what  fact. 

\  2dly.  The  mode  of  such  special  denial. 
^III.  A  denial,  and  stating  a  particular  breach,  8cc. 


It  is  necessary  to  premise  as  a  general  rule,  tliat  it  is  the 
first  object  of  pleading,  to  bring  the  point  in  dispute  between 
the  parties  at  as  early  a  stage  of  the  cause  as  possible,  to  a  sin- 
gle issue  or  point,  which  is  not  multifarious  or  complex  ;(A) 
and  therefore  the  issue  must,  in  general,  be  single. (c)  But  this 
single  point  may  consist  of  several  facts^  if  they  be  dependent 
and  connected, irf)  and  therefore  where  in  ti'espass  the  defendant 
justified  under  aright  of  common,  and  the  plaintiff  in  his  replica- 
tion traversed,  "  that  the  cattle  were  the  defendant's  own  cat- 
"  tie,  and  that  they  were  levant  and  conchant  upon  the  premi- 
*'  ses,  and  commonable  cattle,"  the  replication  was  on  a  special 
demurrer,  assigning  for  cause  that  it  was  multifarious,  hoiden 
to  be  good.(f)    So  according  to  the  first  resolution  in  Crogate*s 


(«)  The  nature,  lanp;ua!!;e,  and 
fs:;rm(3fa  traverse,  \v\\\  presently  be 
more  pai'tieularly  consideretl  ;  it  is 
proper,  liowever,  here  to  observe, 
that  any  replication,  ke.  denying-  tiie 
matter  alleged  in  the  prior  pleadings, 
is  in  its  more  extensive  signification  a 
U-averse,  and  there  is  no  real  distinc- 
tion between  traverses  and  denials, 
they  are  the  same  in  substance.  (Wil- 
l.es' Rep.  224.)  However,  a  traverse, 
in  the  strict  technical  meaning,  and 
more  ordinary  acceptation  of  the 
term,  signifies  a  direct  denial  in  the 
formal  -words,  "without  this, 
"  THAT,"  kc.  of  a  material  fact  in 
the  preceding  pleading,  whether  de- 
claration, plea,  replication,  &c.  and  is 
in  general  prefaced  by  a  formal  in- 
duceiBcut.   (Summary   on  Pleading^ 


75.)  This  formal  mode  of  denial  is 
still  frequently  adopted  in  the  action 
of  ti'esjiass,  but  it  is  rarely,  if  ever 
requisite,  and  should  not  be  unneces^ 
sarily  adopted,  as  it  certainly,  by  re- 
quiring a  rejoinder  repeating  the 
matter  in  tlie  plea,  tends  to  unneces- 
sary delay,  pi-olixity,  and  expense  in 
the  pleading,  see  the  learned  obser- 
vations of  Mr.  Serj.  Williams,  in  1 
Saund.  103.  in  notis,  and  Ld.  Raym. 
C41.  1  Burr.  320.  As  to  the  nature 
of  a  traverse  in  general,  see  Summa- 
ry on  Pleading,  75  to  80. 

(6)  Willes,  204.  254.  1  East,  217. 
1  Burr.  320.     Summary,  77. 

(c)  Id.  ibid. 

(</)  1  Burr.  320.  Willes,  100.  n. 
c.     Bull.  N.  P.  93.     8  Co.  67.  b. 

(e)  Id. ibid. 


^j^^y-r  •       TO  A  SPECIAL  PLEA.  5^7 

Case,  to  a  justification   under  proceedings    in    the    admiralty  //.   Tbeljodu. 

court,   hundred   court,    or   county  court,  or  any  other  court,  '"'."-V  '^'•"'** 

■^  ■^  ol  the  pica. 

which  is  not  of  record,  dc  injuria  sua  propria  is  good,  all  be- 
ing matter  of  fact  and  makinty  but  one  cause  or  j^usiifica- 
tion.(y)  Indeed  in  some  cases  the  traverse  or  denied  must 
consist  of  more  than  one  fact,  for  it  is  another  rule  *Lhat  in  a  *•  578 
traverse  the  plaintiff  cannot  narrow  the  title  set  up  by  the  de- 
fendant  (r)  And  indeed,  according  to  some  modern  cases,  it 
should  seem  that  the  mere  circumstance  of  a  replication  put- 
ting in  issue  several  material  facts,  is  not  the  ground  on  which 
it  is  in  general  objectionable. (/)  We  will  now  proceed  to  ■ 
consider  the  particular  instances,  when  a  general  denial  of  the 
whole  plea  is  or  is  not  allowed,  or  may  not  be  proper  or  advisable. 

In  actions  on  contracts  and  in  rcplevhi,  the  replication  de-  First.    Gene- 
nies  the  tact  or  one  01  the  tacts  alleged  m  the  plea  m  express  when  allowed 
words.(,§-)     But  in  trespass,  and  in  actions  on  the  case  for  slan-  |^|'  adYmbl'"' 
der,  a  replication,  containing  a  general  de?n'al  of  the  nvhoie  plea^ 
frequently  occurs,  and  is  termed  a  replication  de  injuria  sua 
propria   absque  tali   cauna,   or  "  de  son   tort  demesne    sans   tiel 
"  cause. "Qi)     This  replication  puts  in  issue  and  compels   the 
defendant  to  prove  every  material  allegation  in  his  plea,(i)  and 
therefore  it  is  frequently  advantageous  to  the  plaintiff  to  adopt 
it,  when  by  tlie  rules  of  pleading  it  is  permitted. 

In  general,  when  the  defendant's  plea  consists  merely  of 
matter  of  excuse,  and  not  of  matter  of  right  or  interest  incon- 
sistent with  or  affecting  the  right,  the  infringement  of  which 
is  complained  of  in  *the  declaration,  whether  it  relate  to  the  *  57?) 
persons,  personal  property,  or  real  property,  the  general  re- 
plication de  injuria  is  stifficient.(A-)     And  in  these  cases  when  a 


(/)  IiJ.  ilji'l.     Willes,  101.  n.  c.  col'ecto:!  in  Crogate's  casej'S  Cd'.^'g'. 

(e)  4  T.  li.  15".     Sunirnary,  78.  Cockoi'el!  v.  Armstrong-,  Wiiles,  99. 

(/)  1  B.  k  I'.  80.     Bail.  N".  P.  9.3.  I>oct.  Tlac.  vol.  1.  133'  to   11.9.    and 

'Sed  vide   Wiiles,  100.     1   Burr.  320.  Com.  Dig.  lit.  Pleader,   F.  18.  &c.     1 

Summary,  77.     S  Co.  C,7.  h.  B.  k  P.  70,  SO.   Kinch.  Law,  395,  396. 

(^■)  In  replevin,  the  replication  de  (/)  Com.  Uig.  Pleader,  F;  I8tb''24. 

injuria,  never  occurs.     Fiiich.  Law,  8  Co.  67.  a.     Wiiles,  100."         -'i    >! 

3'J6.     Ante,  ofiO.  {k)  S  Co.  67.  a.     Com.  Dig.'Plead- 

(A)    Com.  Dig.   Pleader,    F.     18,  er,  F.   18.   &c.     Doct.    Plac.    113   to 

Crogate's  case,  8  Co.  67.  Most  of  the  115.     I  B.  k  P.  S-^.     1  ?',.!•  t.  ':i<:.  2lV 

points  rcl.itiiig  to  this  replication,  are  218.  _ 

Vol.  I.                                 r  53  1 


579  FORMS  AND  PARTS  OF   REPLICATIONS^ 

IJ.  The  hmhj.  ^itig  ig  stated,  merely  as  inducement  to  the  defence,  the  plain- 

Sdlv.     Denial      •  (•[•  1  -111  -^     I  •.   • 

01  the  pica.  '■*"  need  not  answer  or  particularly  deny  it,  becuuse  it  is  mere- 
ly collateral  to  the  matter  in  dispute,  which  constitutes  the  dif- 
ference between  a  case,  in  which  the  plaintiff  makes  title  by 
his  declaration  to  any  thing,  and  the  defendant  in  his  plea  de- 
nies it  or  claims  an  interent  therein,  affecting  the  same,  when 
he  must  reply  specially. (/)  'I'hus  in  an  action  for  an  assault, 
if  the  defendant  plead  non  asuauii  demesne^  or  that  he  arrested 
the  plaintiff  upon  hue  and  cry  levied,(m)  or  the  plea  be  n*ode- 
rate  correction  of  a  servant  for  his  neglect  of  service,  the  ge- 
neral replication  dc  injuria  is  sufficient  ;(«)  and  though  such 
excuse  for  the  personal  injury  may  be  staled  in  the  plea  to  de- 
pend on  the  possession  of  land  or  personal  property,  as  ii  the 
detciuiant  piead,  that  the  pLiniilf  entered  upon  his  possession, 
and  that,  therefore,  the  deiendunt  mollitcr  7iianus  im/wauit  to  re- 
move him,(c)  or  if  the  plea  be  that  the  defendant  was  sriscd.  Sec. 
as  rector,  and  that  the  tithes  were  severed,  and  that  the  pl.antiff 
endeavoured  to  carry  them  away,  and  that  the  defendant  in  de- 
fence of  his  tithes,  nwUiter  manus  imfiosuit^  See.  in  these  cases  this 
*    580  general  replication  *is  sufficient,  and  the  phiiniiff  need  not  answer 

the  defendant's  title,  because  the  plaintiff  by  his  action  claims 
nothing  in  the  soil  or  corn,  but  only  damages  for  the  battery, 
which  is  merely  collateral  to  the  title,  and  which  is  stated  mere- 
ly as  inducement. (//)  However  in  a  recent  case  it  seems  to 
have  been  considered  that  where  the  excuse  arises  in  part  out 
of  the  ficisin  in  fee  of  another,  then  etc  injuria  is  insufficient.(f/) 
So  in  trespass  to  jiernonal  property,  if  the  defendant  merely 
justify  the  chasing  cattle  or  removing  goods  from  off  land,  of 
which  he  was  possessed,  the  general  replication  will  suffice  ;(r) 
and  in  trespass  to  real  properly,  if  the  defendant  in  his  plea  do 


(0  Yelv.    157.      Cro.    Jac.   2i5.—  ( /j)  Yelv.  157.     Cro.  Jac.  224,  2'25. 

Willes,  102,  103.      Coin.  Dig.  PJead-  Com.  Di-   Pleader,  F.  18. 

cr,  F.  2(T,  21.  (y)    Ante,  d6.S,  5G4.      1  B.    k    P. 

(w)   S  Co.  07.  a.        1  Sauiid.  24i.  a.  80.    and    see  Willes,    102,   103.      12 

11.7.  Mod.  582.    Cro.  Eliz.  539,  540.     Cro. 

(«)  <'iil>.  C.  P.  154.       Willes,   102.  Jhc.  598. 

(o)   Latch.  128.  221.         Cum.    Dig.  (r)  Ante,    5G4. 
Pleado,-,  F.  18.      12  Mod.  582. 


TO  A  SPECIAL  PLEA.  58© 

not  claim  any  interest  therein,  or  easement  over  the  same,  the  //.  Tlie  budtj. 
replication  cle  injuria  is  sufficient  ;  as  if  in  trespass  for  pulling  2|Ilv.^  denial 
down  a  biiiiding,  the  defendant,  without  claiming  any  interest 
therein,  plead  that  he  removed  it  as  being  a  nuisance  on  his 
land,  this  general  replication  will  suffice  ;(3)  so  if  in  trespass  to 
land  with  cattle,  the  deiendant  plead  that  the  plaintiff's  fences 
were  out  of  repair,  whereby  the  defendant's  cattle  escaped  into 
the  plaintiff's  close,  this  plea  consisting  merely  of  matter  of 
excuse,  and  claiming  no  interest  in  the  land,  may,  it  is  said,  be 
answered  by  the  general  replication  ;(i)  and  though  it  is  stated 
as  a  general  rule,  that  where  the  defence  rests  upon  an  au- 
thority of  law,  the  replication  *must  be  special.(«)  yet  this  as  *  581 
a  general  position  is  inaccurate  ;(f )  for  if  the  defendant  justity 
as  constable  and  without  warrant  taking  the  plaintiff  for  a  hreuch 
of  the  peace  ;  or  as  a  vagrant  or  lunatic  ;(w)  or  under  a  pub- 
lic act  of  parliament,  or  under  a  right  for  all  persons  given  by 
the  comiTion  law  •,{x)  or  if  in  false  imprisonment,  the  defend- 
ant justify  by  process,  out  of  the  admiralty,  hundred,  or  coun- 
ty court,  or  other  court  not  of  record,  the  general  replication 
is  sufficient,  all  being  matter  of  fact,  and  making  but  one 
cause, (z/)  and  the  instance  of  an  entry  to  view  waste,  proceeds 
on  a  special  reason. (r) 

But  if  in  any  case  the  defendant  justify  by  ivan-ant  of  a  jus- 
tice of  the  peace, (a)  or  as  sei'vant  of  another  or  by  hin  command., 
the  replication  must  be  special,  and  must  admit  or  protest  the 
warrant  or  commandment,  and  reply  de  injuria  absque  residuo 
cauna,  or  take  issue  simply  on  the  warrant  or  commandment. (6) 
So  when  by  the  defendant's  plea  any  authority  or  power  is  me- 
diately or  immediately  derived  from  the  plaintiff,  there  although 


(s)  Summary,  81,  S2.  Mod.  58'2.      8  Co.  67.  a.     Doct.  Plac. 

(0  Ante,  567.  114. 

(m)  8  Co.  67.  1).  (z)   12  Mod.  582. 

\v)  12  Mod.  582.  (<()   12  Mod.  582,  583. 

(w)    Com.    Dig.    Pleader,    F.    18.  (6)  Id.   ibid.      8  Co.  07.   b.  C,7.  a. 

12  Mod.  582.  l.utw.  1459.      Doct.    Plac.    113,  114- 

(x)  12  Mod.  580,  581.      I  B.  k  P.  1  B.  &  P.  76.     Com.  Dig.  Pleader,  F. 

77.      Summary,    81.        .Ice.    Tidd's  Willes,  100,  101.    2  Sauiid.  295.  b.  n. 

Prac.   3d   edit.   635.  and    8  Co.  07.  b.  1.     2  Bro.  Abr.   tit.    de  son  tort  de- 

coutr.  mesne,  pi.  13.  15. 

(j/)  Com.  Dig.  Pleader,  F.  19.      13 


sk 


FORMS  AND  PARTS   OF  REPLICATIONS 


IJ.  The  h(r]ij.  no  interest  be  claimed,  the  pluintifi"  ous^lit  to  answer  it  spccial- 
^I'u  ^^'i?"''  b''  ''"'1  shall  not  reply  de  injuria  s;enerai!y,(c)  as  if  he  justify 
■t'  532  by  virtue  of  *the  lease,  or  license,  or  conamand,  of  the  p.'ain- 
tifT.(f/)  So  when  the  defendant  in  his  plea  claims  in  his  own 
right,  or  as  lessee  or  servant  of  another  any  right  to,  or  inte- 
rest in,  the  person, (e)  personal  property,(./")  or  real  property, (5') 
for  a  supposed  injury  to  w  hich  the  plaintiff  has  declared,  or 
-any  riglit  of  way, 70  common, (/)  or  other  easement,  8cc.(y) 
or  rent  issuing  out  of  the  land  claimed  in  the  declaration  ;(X-) 
or  if  the  plea  contain  matter  of  record  not  stated  merely  as  in- 
ducement,(/)  and  of  which  a  jury  cannot  be  competent  judges, 
as  if  the  sheriff  or  his  officer  justify  under  process  of  a  court 
of  record, (772)  or  if  the  defendant  justify  under  a  warrant  of  a 
justice  of  the  peace, (w)  or  under  a  particular  custom  of  a 
manor,(o)  or  in  some  cases  by  authority  of  law,  as  to  view 
Avaste  ;(//)  in  these  cases  the  replication  de  injuria^  is  imj)ro- 
per.(.7)  and  the  plaintiH"  must  either  deny  the  title,  easement, 
warrant,  &:c.  in  parlicular,(r)  or  admiiiing,  or  in  some  cases 
*  583  protesting  *those  matters,  must  reply  that  the  defendant  com- 
mitted the  trespasses  of  his  own  wrong,  and  without  the  residue 
of  the  cause  alleged  by  the  defendant  ;  in  which  case  it  will 
not  be  incumbent  on  the  defendant  to  prove  either  of  those 
matters.  And  where  matter  of  record  is  denied,  the  replica- 
tion should  not  be  dc  injuria^  Sec.  with  a  traverse  of  the  record, 
but  should  be  merely  nid  tid  n'cordAn) 


(t)  8  Co.   f.r,   68.     1  B.   k  1'.  89.  (/)  Willes,   103.  n.  a.      Com.   Di-. 

Com.  Dig.  Pleafior,  T.  2'2.  Ple.-ukT,  F.  19,  20.     2  Leon.  81. 

(f/)    Com.   Dig-.    Pleader,    F.     2'2.  {m)    8  Co.  dT.  a.      Doet.  Plac.  114. 

Summarv,  8.5.     Bro.  Abr.  tit.  de  son  Cdpi.  Dig.  Pleader,  i".  20.     Haidr.  6. 

tort,  pi.  30.     L(l.  Raym.  104,  105.  12  .Mod.  .iSO,  oSl,  582. 

(<>)  Wnies,  102.  (n)    \2  Mod.    582,     583.        Doct. 

(/)  Yelv.   157.        Cro.    Jac.   225.  Plac.  113. 

do.  Eiiz.  530.  (0)    Com.    Dig.     Pleader,    F.   20. 

(^•)  8  Co.  07.  a.      1  B.  &  P.  79.  c.  Hob.  76.      3  Lev.   49.      8  Co.  C7.    a. 

80.      Willes,  52.  99.  101,    102.  Doet.  Willes,  202. 

Plac.   114.     Com.    Dig.    Pleader,    F.  (/^)  8  Co.  67.  b.    Com.  Dig.  Plead- 

'il.  &c.  er,  F.  23.     12  -Mod.  582. 

(/;)    Id.  ibid.     1  B.  k  P.  79.  (rj)  See   all  the   above   cases,    and 

(0  id.  ibid.  S  Co.  67.      1  B.  &  P.    79,  80.     Doct- 

(./)  Id.  ibid.  Plac.  114.     Com.  Dig.  Pleader,  F.  20. 

Ih)  8  Co.   67.   a.      1  B.   &  P.    76.  See. 

Willes,  5-2.     Com.   Dig.    Pleader.  F.  (r)   Lutw.  1459. 

21.  [s)  3  Lev.  243,  244.    Lutw.  1459. 


TO  A  SPECIAL  PLEA.  583 

Thus  where  in  tresp;;ss  for  taking  the  plaintifV's  servant,  the    //.  The  hody. 
defendant  pleaded  that  the  father  of  the  person  taken,  held  of  2<llv-  Denial 

'  _  ...  "f  the  plea. 

the  defendant  by  knight's  service,  and  died  seised,  and  that 
the  person  taken  being  under  age,  the  defendant  seised  him  as 
his  ward,  the  general  replication  de  injuria  was  held  insufficient, 
the  plea  claiming  an  interest  on  the  person  claimed  by  the 
plaintiff  in  his  declaration. (^)  So  if  in  trespass  for  taking 
goods,  trees,  See  if  the  defendant  plead  that  he  took  them  as 
tithe  or  as  a  distress  for  rent,  or  as  damage-fcusaiit,  shewing 
title  thereto,  the  general  replication  will  be  impjopei  ;(if) 
though  by  the  statute  of  sewers,  and  as  to  distresses  for  poor 
rates,  exceptions  are  introduced  ;  and  where  in  a  justification 
of  takini^  cattle,  duinugc-fdcisant,  the  defendant  sets  out  a  tide, 
and  does  not  rely  merely  on  possession,  the  replication  should 
be  special  ;(t^)  the  other  instances  are  already  sufficiently  enu- 
merated. It  also  seems  that  though  the  plea  *ciaim  no z/z^t-rc.s;^  ^  ''9\/!L 
in  the  property  mentioned  in  the  plaintiff's  declaration,  but 
merely  contains  m.atter  of  excuse^  yet  that  where  such  matter 
of  excuse  arises  in  part  out  of  the  Reisi7i  in  fee  of  another,  it 
is  not  advisable  to  reply  de  itijuria,  because  that  replication  is 
only  allowed  where  in  the  plea  an  excuse  is  offered  to  jiersi^^nal 
injuries,  and  not  even  then  if  it  relate  to  any  interest  in  land, 
which  would  make  part  of  the  issue,(w)  there  being  a  dioiinc- 
tion  in  this  respect  between  a  plea  relying  merely  on  fiosses&iori 
as  inducement,  and  where  an  interest  is  pleaded  by  way  of 
title. (x) 

There  are  also  many  cases,  in  which,  though  the  replication 
de  injuria^  might  not  be  objectionable  upon  demurrer,  still  it 
V. ill  not  be  pioper  to  adopt  it,  and  it  may  be  necessary  in  effect 
to  confess  and  avoid  the  plea,  as  in  the  instance  before  men- 
tioned ;((/)  and  in  an  action  of  false  imprisonment,  where  the 


(0    Willcs,    102.      Yelv.    1.58.      1  (w)  IP.,  k   P.    80.      "\\  illes,  102, 

Brown.  -215.     Com.  Dig.  Pleadei-,  F.  103.     Cm.  Jac.  598.     Lfl.  Raym.  640. 

12I.  12  Mod.  582.      Cro.   Eliz.    539,    540- 

(ji)  Ante,  504,565.    do.  Jac.  225.  Yelv.    157.  observed  upon  in  Willes, 

Yelv.    isr.      Cro.    Eliz.    539.      Com.  101.     2  Saund.  294. 

Dig.  Pleader,  F.  21.      1  B.  &  P.    76.  (j)  Cro.  Car.  IjS'.    Ld.  Raym.  120 

Willes,  52.  99.  Cartli.  10. 

(r)  Ante,  564,  505.    1  Lev.    Com.  (;')    Ante,  563. 
Dig.  Pleader. 


584  FORMS  AND  PARTS  OF  REPLICATIONS 

II.  The  body,  defendant  justifies  the  commitment  us  a  magistrate  for  a  baila- 
2dly.  Dcnuil    i^je  offence,  in  consequence  of  an  information  upon  oath,  the 

of  the  i.lea.  ,   •     •  ^         ,  . 

plamtiff  under  the   general  rephcation  dc  injuria  sua  p,roJiria^ 

Sec.  cannot  give  in  evidence  a  tender  and  refusal  of  bail,  hut 
ought  to  reply  tliat  matter  specially. (2)  So  in  other  cases 
where  it  may  not  be  absolutely  necessary  to  reply  specially,  it 
may  be  advisable  so  to  do,  in  order  to  narrow  the  plaintiff's 
evidence,  and  to  compel  the  defendant  to  admit  a  part  of  his 
title,  (fi) 
^    585  *Where  de  injuria  is  improperly  replied,  the  defendant  may 

demur  generally,  but  the  defect  will  be  aided  after  verdict. (A) 
Form  of  ^c-        In  point  o{  form  the  general  replication  de  injuria,,  or  de  son 
de  injuria,  fs.c.  ^^^^  deme.mc,  would  be  defective,  unless  the  words  absc/ue  tali 
causa  be  added,  though   the  omission  would  be  aided  by  ver- 
dict.(c)     The  usual  language  of  this  replication  is,  "  firecludi 
"  «o«,  because  he  says  that  the  said  defendant  at  the  said  times 
"  when,  &c.  of  his  own  wrong,  and  iviihout  the  cause  by  him 
"  in  his  said  second  plea  alleged,  committed  the  said  trespasses 
"  in  the  introductory  part  of  that  plea  mentioned,  in  manner 
"  and  form  as  the  said  plaintiff  hath  above  in  his  said  declara- 
"  tion  complained   agaiubt  the  said  defendant,  and  this  he  the 
"  said  plaintiff  pn.ys  may  be  inquired  of  by  the  country,"  £cc. 
which  is  uniformly  the  conclusion  of  such  a  replication.     The 
word  cause,,  though   in  the  singular  number,  puts  in  issue  all 
the  facts  in  the  plea,  which   constitute  but  one   cause  ;(('/)  and 
if  such  a  rcplicadon  be   adopted,   as   we    have  seen  it  may,  in 
answer  to  two  or  more  pleas  by  different  defendants,  the   tali 
causa  will  suffice,  reddendo  singula  singulis,{e)  and  the  \\  ords  7nodo 
etfor?na,  only  put  in  issue  material  allegations  in  the  plea.;^y) 
Secondly.  l)i>       When  the  pkiintiff  is  not  at  liberty  to  reply  de  injuria  to  the 
part  of  tlie  '    '^vhole  pica,  but  must  deny  *some  f:articular  fact  or  facts,  it  is 
l*'*-"'-  fi'si  to  be  considered  what  fact  he  may  deny  ;  and  secondly -,  the 

form  of  such  denial. (,§) 


(r)  2  ni.  Hep.  n(>5.  (</)  s  Co.  6r. 

(fl)  Witlcs,  204.  254.     1  East,  217.  (e)  1  Leon.  124.     Cro.  Eliz.  139.    1 

(6)    Com.    Dig.     Pleader,    F.    24.  Sid.  39.     Ante,  574. 

Hoi).  76.     Sir  T.  Ituym.  50.  (  /)  Ante,  470.     Gilb.  C.  P.  51. 

(c)  Com.  Dig.  Pleader,  F.  24.  Cro.  (j-)    As  to  traverses  in   general, 

Jac.599.    Gilb.  C.  P.  153.    1  Sid.  Sit.  Com.  Dig.  Pleader,  G. 

Lutw.  1.384. 


TO  A  SPECIAL  PLEA.  586 

1st.  A  party  may  traverse  or  deny  any  material  allegation  in   TL  The  body. 
his  opponent's  pleading,  although  it  might  have  been  unneces-  ^J.  jYic^.^ioa*' 
sar\'  to  state  it  so  precisely   as  laid  ;  but  where  the  allegation  1st.  AVhat 
IS  noL  material  it  cannot  be  traversed  ;  as  it  in  an  avowry,  it  be  traversed    or 
stated  that  the  defendant  was   seised   in   fee,   though  it  would  'It^nict'- 
have  been  sufficient  to  have  alleged  that  the  close  was  his  free- 
hold, the   seisin   in   fee   may  be  traversed  ;(//)  and   a  material 
fact  may  be  denied,  though  laid  under  a  videlicet  ;(0  and  what- 
ever is  necessarily  understood,  intended  or  implied,  is  traver- 
sable as  much  as  if  it  were  expressly  alleged, (7)  but  matter  not 
before  stated,  or  necessarily  implied,  is  not  traversable. (A)     In 
replevin  and  trespass  to  personal  chattels,  if  the  defendant  justify 
as  bailiff,  or  by  the  command  of  another,  his  authority  may  be 
traversed,  but  in  trespass  to  real  property  the  command  is  not 
traversable,  unless  both   parlies   claim    under  the   same  per- 
son ;(0  and  when  a  party  appears  on  the  face  of  the  pleadings 
to  be  estopped  from  denying  a  fact,  if  he  were  to  traverse  it,  his 
pleading  would  be  demurrable  ;(m)  euid  if  time,  place,  or  any 
other  circumstance,  when  not  material,  be  traversed,  the  opposite 
party  may  demur  on  the  ground  *that  the  pleadings  amount  to         ^   587 
a  negative  pregnant  ;(n)  as  if  in  a  plea  it  be  stated  that  on  such  a 
day,  and  at  such  a  place,  the  plaintiff  demised  the  locus  in  quo  to 
the  defendant,  as  the  time  and  place  are  immaterial,  the  replica- 
tion denying  the  demise,  should  not  put  them  in  issue  ;(o)  and  in 
general   the  intent  or   virtute  cnjus,  as  "  by  virtue  of  the  said 
<'  .varrant,"  Sec.  ought  not  to  be  put  in  issue  ;(/?)  nor  is  matter 
of  law  or  legal  inference,  in  general  traversable  •,(g)  as  if  to  a 
pica  stating  a  public  right  of  fishery,  in  an  arm  of  the  sea,  the 
plaintiff  reply  a  prescriptive  right  of  sole  and  several  fishery 
he  should  not  traverse  the  public  right,  because  it  is  an  infer- 


(//)  2  Saiiiid.  2nr.   notes  21,  22.  2k  (h)  Com.  Dig.  Pleader,  G.  12. 11.7, 

Com.  Dig.  Reader,  Q.     See  2  Sauud.  8,9.     2Sauiid.  318.     1  Saund.  258. 

175.  1.  n.  (o)  Id.  ibid,  aud  Com.  Dig.  Pleaii- 

(;')  1  Saund.  170.  n.  2.  er,  C.  2.     2  Saund.  314.  313.  u.  G. 

(  /)  2  Saund.  10.  n.  14.  (/>)  Com.  Dig.  Pleader,  7.  12  Mod. 

{k)  I  Saund.  312.  n.  4.  387.  I  Saund.  23.  n.  5.  299.  n.  3. 

(0  1  Saund.   347    c.  n.  4.     1  East,  (ry)  2   H.   Bl.  182.     5   T.   H.  SC7. 

245.   n.   c.     Cro.  Car.   58G.     \Villes,  whtre4T.  R.  439.  was  reversed.     2 

100.  n.  b.     Ante,  566.  Sauud.    159.  a.   iGl.  «.   11.     1  Saun<J. 

(m)  Stra.  817.     8  T.  R.  487.     7  T.  2».  m.  5.    Com.  Di-  Pleader,  (i.  5. 
R.  557.    Ante,  575. 


587  1  OIIMS  AND  PARTS  OF  REPLICATIONS 

//.  The  hoihj.  ence  or  intendment  of  Unv  that  the  public  have  a  right  to  fish 

ol""il'.e^p'lcr'  "^  ""  ^^""^  ^^  ^'^'^  ^^^  '(^''')  '^'^^  ti-averse  slioukl  also  be  on  some 
ailirmative  matter,  and  not  put  in  issue  a  negative  allegation  J 
thus  if  a  plea  state  a  request  to  deliver  an  abstract  and  a  re- 
fusal, a  replication  that  the  plaintiff"  did  not  neglect  imd  refuse 
to  deliver  such  abstract,  would  be  insufficient. (rJ  The  traverse 
also  must  not  be  too  large  ;  thus  to  an  avowry  for  20/.  arrears 
of  rent,  the  plea  in  bar  must  be  that  no  part  of  it  is  in  arrear, 
and  if  it  were  merely  that  the  said  sum  of  20/.  is  nor  in  ar- 

*    588  rear,  without  saying  "  or  any  part  thereof,"  *it  would  be   de- 

murrable ;(.s)  but  where  to  a  declaration  against  a  rector  for 
not  carrying  away  tithe,  the  defendant  pleaded  that  the  close  was 
surrounded  with  ditches,  and  that  the  ditches,  ways,  and  passa- 
ges were  so  fdled  with  water  that  the  defendant  could  not  car- 
ry off  his  tithe,  a  replication  that  the  ditches,  ways,  ayid  passa- 
ges were  not  so,  was  held  sufficient  on  demurrer,  though  in  the 
copulative,  because  the  plea  is  one  entire  matter  of  excuse,  and 
the  defendant  relies  on  the  whole,  and  not  on  each  particular's 
being  impassable  \{i)  so  a  replication  to  a  plea,  claiming  right 
of  common,  traversing  "  that  the  cattle  were  the  defendant's 
"  own  cattle,  and  that  they  were  levant  and  couchant  upon  the 
"  premises,  and  commonable  cattle"  was  held  sufficient,  because, 
though  issue  must  be  taken  upon  a  single  point,  it  is  not  neces- 
sary that  such  single  point  should  consist  only  of  a  single  fact, 
and  the  point  of  defence  was  the  cattle  in  question  being  enti- 
tled to  common  ;(w)  so  to  a  plea  prescribing  for  tolls,  and  also 
to  distrain  for  the  same,  the  replication  may  deny  both  prescrip- 
tions. On  the  other  hand,  the  traverse  must  not  be  too  Jiar-row, 
so  as  to  prejudice  the  defence  ;(t')  thus,  if  in  an  action  of  tres- 
pass in  a  common  called  ^J,  the  defendant  pleads  that  ~4  and  B 
commons  lie  open  to  each  other,  and  then  prescribes  for  a  right 
in  both  commons,  the  plaintiff"  must  traverse  the  entire  pre- 
*  coQ  scription  ;Czi')  but  with  this  *exception,  a  party  is  not  bound  to 
traverse  mure  than  one  fact ;  as  in   t-i'espass,  if  the   defendant 


(/■)  GEast,  556,  557.  (u)  1  Buir.  317.      5  T.  R.  %  3. 

(s)   3  B.  h    P.   348.      Com.    Dig.  (v)  Com.  Dig.  Pleadei-,  G.  16. 

Pleader,  G.  12.  15.     2  Saund.  207.  ii.  (w)  4T.  R.  157.  1  Saund.  269.  n.  I, 

34.  1  S.iuud.  268.  the  reason,  259.  n.  2.  Id.  ibid. 

(f)  1  Stra.  245. 


TO  A  SPECIAL  PLEA.  589 

justify  under  a  prescriptive  right  to  a  duty,  and  the  like  right  ^^-  '^^"^  ^'"'^i'- 
^      ,•         •     r      •  1-       •  •  1       1    .        •  1  1  '2tHv.   Denial 

to  distrain  for  it,  a  rephcution  traversuig  the  duty  without  deny-  of  the  i*lea. 

ing  the  right  to  distrain  is  sufficient. C-^) 

Replications  denyintr  a  fiarticulnr  fjct  or  facts,  are  in  point  of  2dly.    Modes 
form  of  three   descripiions  ;  Jirnt,   the   plaintiff  protests   some  ^jj''^"''   '  *^ 
fact  or  facts,  and  denies  the  other,  concluding  to  the  country  ; 
or  secondly^  he  at  once  denies  the  particular  fact  intended  to  be 
put  in  issue,  and  concludes  to  the  countiy  ;  or  thirdly^  formally 
traverses  a  particular  fact,  and  concludes  with  a  verification. 

1st.  When  the  pleading  of  either  party  contains  several  mat- 
ters, and  the  opposite  party  is  not  at  liberty  put  to  the  whole  in 
issue,  he  may  protect  against  one  or  more  facts,  and  deny  the 
other  ;  as  if  in  a-isumjisit  the  defendant  plead  an  accord  and  sa- 
tisfaction, as  that  he  delivered  to  the  plaintiff"  and  the  latter  ac- 
cepted, a  pipe  of  wine  in  satisfaction  of  the  promises  mentioned 
in  the  declaration,  the  plaintiff  may  protest  the  delivery  in  sa- 
tisfaction, and  reply  that  he  did  not  accept  the  wine  in  satisfac- 
tion \{y)  or  in  trespass,  where  the  defendant  in  his  plea  has  jus- 
tified an  arrest  and  wounding  under  a  writ  and  warrant,  the 
plaintiff  may  protest  the  writ  and  warrant,  and  reply  de  in- 
juria sua  propria  absque  residua  causa,(z)  or  may  protest  one 
fact,  and  traverse  another  ;(a)  and  if  to  a  plea  of  performance 
*of  several  matters  in  the  condition  of  a  bond,  the  plaintiff  *  590 
mean  only  to  insist  on  the  breach  of  one,  he  may  protest  the 
performance  of  the  others. (6)  This  is  termed  a  protestation^ 
and  its  only  possible  use  is,  that  in  case  the  party  making  it 
succeeds  in  the  point  to  be  tried,  he  thereby  saves  to  himself 
the  liberty  of  disputing  in  any  o  her  suit,  the  truth  of  the  alle- 
gation which  is  protested  against. (c)  It  is  wholly  unavailable 
in  the  particular  suit  in  which  it  is  adopted,  for  the  allegation 
protested  against,  is  in  effect  admitted  in  that  suit,  so  that  no 
evidence  need  be  adduced  in  support  of  it,  and  it  is  of  no  ser- 
vice in  any  other  action,  if  the  issue  be  found  against  the  party 


(x)  1  Wils.  338.  {b)  Dver,  184.  a. 

(y)  3  Wciitw.  135.     Bac  Abr.  Ac-  (c)  2  Saaad.  103.  n.  1.      Cora.  Dig. 

cord,  C.  Pleader,    N.     D<  ct.   Plac.   295.     Co. 

(r)  1  Burr.  320.     Post,  vol.  2.  644.  Lii.  124.  b.     Plowd.  276. 
(o)  Foph.  1. 

Vol..   I.  r   54   1 


590  FORMS  AND  PARTS  OF  REPLICATIONS 

TI.  The  hiuhj.  making  it,  unless  it  be  of  matter  which  Qould  not  be   pleade<^ 

2(Ily.  Denial     or  on  which  issvie  could  not  be  joined,  and  then  the  party  pro- 
of the  plea.  .  ... 

testing  will  not.  be  concluded,  though  the  issue  be  found  against 

him  ((/j  It  is  said  that  matter  which  is  the  ground  of  the  suit, 
or  upon  which  issue  might  be  taken,  cannot  be  protested,  as  ill 
detinue  by  the  executor  of  A^  the  defendant  cannot  protest  that 
A  did  not  make  the  plaintiff"  his  executor,  for  it  is  the  ground 
of  the  suit,  and  utterly  destroys  the  pluintiff''s  action.(<')  It  is 
also  a  rule  that  a  protestation  which  is  repugnant  to,  or  incon- 
*   591  sistent  with  the  *plea,  is  inartificial  and  improper.(,/')    In  these 

cases  the  replication  should  either  admit  the  part  of  the  plea 
which  is  not  disputed,  by  saying,  "  true  it  is  that,"  kc.  or 
should  at  once  deny  the  matter  intended  to  be  tried,  though 
the  latter  mode,  as  being  the  most  concise,  appears  preferable, 
for  whatever  is  not  traversed  is.in  eff'ect  admitted.  However, 
a  repugnant,  or  inconsistent,  or  idle,  or  superfluous  protesta- 
tion does  not  vitiate  the  plea,  though  it  be  shewn  for  cause  of 
demurrer,  for  the  intent  of  a  protestation  is  that  the  party  may 
not  be  concluded  in  another  action.(  g')  Hence  it  appears  that 
a  protestation  is  in  general  an  unnecessary  form,(//)  and  the. 
replication  may  at  once  deny  the  fact  intended  to  be  put  in  is- 
sue, as  in  the  next  descripiion  of  replications  ;0)  and  though 
it  is  not  unusual,  when  it  is  doubtful  whether  a  plea  is  sufficient 
in  lav/,  to  protest  the  sufficiency  of  it  in  the  beginning  of  the 
replication,  yet  this  occasions  unnecessary  expense,  for  with- 
out such  protestation,  the  plaintiff  would  afterwards  be  equal- 
ly at  liberty  to  object  to  the  plea  by  motion  in  arrest  of  judg- 
ment, writ  of  error,  &:c.  In  point  of  form,  the  proper  place 
in  which  to  introduce  a  protestation  in  a  plea,  is  immediately 


((/)  1  Sannd.  103.  n.  1.     Com.  Dig.  wliicli  tliere  are  instances  of  protest- 
Pleader,  N.     Bro.  Abr.  tit.  Protestu-  alions    of  matter,    upon  which  issue 
tinn.     Finch.  Law,  359.     Plowd.  270.  niipht  have  been  taken. 
Co.  124.  b.  (./■)  2  Sauud.  103.   n.  1.  Bro.  Abr. 

(e)  Com.  Dig.  Pleader,  N.  2Saimd.  Pi'otestation,  1.  5.     Plowd.  2"6. 

103.  n.  1.     PliMvd.  276.     Doct.   Plac.  {g)    Com.    Dig.   Pleader,    N.      2 

29fi.     Moor,  35.5,  35fi.    Cro.  Car.  365.  bauiid.  103.  b.  n.  1. 

3  Wils.    109.    llf'.     Sed    quasre ;    see  (/;)  3  Lev.  425. 

the  cases  in  2  Saund.  103.   n.  1.  in  (/)  See  the  form,  3  Lev.  105. 


TO  A  SPECIAL  PLEA.  591 

■after  the  words  actio  non^  ^c.{j)  and  in  a  replication,  after  the    //.  T/ip  bodij, 

words  firecludi  non^  Scc.(X-)  '^'lly.  Dc-t.ial 

....  -  ,.        .  ,         .  of  tllf  pk-M. 

*2dly.  1  he  second  description  of  replication,  a/ 077C/' (/d'Hi/? wo-  ^    ^.^^ 

the  fiurticuiur  fact  intended  to  be  fiut  in  is^ue,  and  concluding  to 
the  country^  without  any  preamble,  and  without  a  formal  tra- 
verse, most  irequeiuly  occurs  in  practice,  and  on  account  of 
its  conciseness,  sliould,  when  practicable,  be  adopted.  In  as- 
sum/isit  and  other  actions  on  comracis,  when  the  plaintifl'  de- 
nies and  does  not  confess  and  avoid  the  plea,  this  rt-plicalion  is 
frequent ;  as  that  the  defendant  was  not  an  infant, (/)  or  tliat  no 
tender  was  made,  Scc.(///)  so  to  a  plea  of  accord  and  satisfac- 
tion, the  plaintiff  may  without  any  protestation,  reply  eilhcr 
that  the  defendant  did  not  deliver  the  pipe  of  wine  in  satislac- 
tion,  or  that  the  pluiniilf  did  not  accept  the  same  in  satisfac- 
tion.(?/)  So  in  actions  in  form  ex  delicto,  in  general  when  the 
plaintiff  denies  any  allegation  in  the  plea,  the  better  and  short- 
er method  is  directly  to  deny  the  fact,  without  a  formal  tra- 
verse, and  to  conclude  to  the  country Xo)  Thus  if  the  defend- 
ant has  pleaded  defect  of  fences,  or  a  prescriptive  rii^ht  of 
common,  or  of  way,  or  a  license,  instead  of  inducing-  the  re- 
plication, with  a  repetition  of  the  declaration,  as  by  sayins^  that 
the  defendant  of  his  own  wrong  committed  the  trespasses  or 
other  matters  complained  of,  and  then  adding- a  formal  traverse, 
and  concluding  with  a  verification,  (in  which  case  there  must 
be  a  rejoinder  reasserting  the  matter  of  the  piea,  although 
there  has  already  been  an  affirmative  and  negative,)  the  pro- 
per *way  is  to  say  firecludi  non^  because,  Sec.  at  once  and  im-  -:<^  5^^> 
inediately  denying  the  defect  of  fences,  or  the  obligation  to 
rep^dr,  or  the  prescriptive  right  of  common,  or  way,  or  the 
license,  and  concluding  to  the  country. (/;)  It  must  be  ad- 
mitted that  it  is  every  day's  practice  in  these  cases  to  reply 
with  a  formal  traverse  and  verihcation,  but  it  is  a  practice 
tending  to  unnecessary  repetition,  and  useless  expense,  and  it 


(.;■)  Plowd.  276.      2  Sii'iiid.  10,5.  11.         (m)   Vu&i,    %<)1.  2.   602.       Lil.    EiU. 

l.al       See   the   forms,  I'lowd.    276.     105,   106. 

Com.  Dig.  PleadcT,  X.  {o)  1  Saum).  10.3.  b. 

(/:)    Sec  the  forms,  post,  vol.  2.         (/»)   1  Siuiiul.  103.  b.      4  Kiht.  .320. 

044.     ,3  Wentw.  135.  See    the  forms,    jiost,  vol.  2.    C5U  to 

(/)  Post,  vol.  2.  594.  652. 

(w)  Id.  596. 


593  FORMS  AND  PARTS  OF  REPLICATIONS 

//.  The  bodij.  may  be  hoped  that   the   observations  of  the   learned   editor  of 

2dlv.  Dtninl     Saiuidei's'  Rcfwrts,{<j)  will  have  the  effect  of  ulterinaj  the  prac- 
of  the  [ilea.  .  .  .  . 

tice  v.'hich  was  reprobated  even  ni  t!ic  time  of  William 
III  (r)  and  in  the  rei^n  of  Geo.  11.  was  considered  by  the 
court  as  an  antiquated  mode  of  pleading,  tending  to  unneces- 
sary prolixity,  and  was  said  to  have  been  altered  of  late. (a)  In 
this  description  of  re])licciion,  care  must  be  taken,  not  to  at- 
tempt to  put  in  issue  any  immaterial  mat;er.(f) 

odly.  A  formal  traverse  of  the  matter  alleged  in  the  plea, 
and  concluding  with  a  verification,  is  rarely  necessary  ;  for  \vc 
have  just  seen  that  when  the  plaintiff"  is  at  liberty,  without  in- 
troducing any  new  matter,  to  deny  that  alleged  in  the  plea,  he 
may  and  indeed  should  concisely  deny  it,  and  conclude  to  the 
country  ;  but  ivhcn  it  is  necessary  in  the  rejilication^  or  other 
pleadings  to  shew  a  title  in  the  plaintiffs  or  to  introduce  nevj  mat- 
ter iiicomiatent  with  that  stated  by  the  other  /mrty,(b)  or  where 
there  are  two  affirmatives,  which  do  not  impliedly  negative 
*  594  each  other,  or  a  confession  and  avoidance  by  argument  *oniy, 
a  traverse  is  necrssary,  for  otherwise  pleadings  would  run  to 
infinite  prolixity. (c)  Thus  where  the  defendant  alleges  seisin 
in  Jy  from  whom  he  claims,  the  plaintiff"  cannot  in  )us  repli- 
cation allege  seisin  in  B,  from  whom  he  claims,  without  either 
traversing,  or  confessing  and  avoiding  the  seisin  alleged  by 
the  defendant  :(c/)  so  where  in  replevin  the  defendant  avowed 
as  for  a  distress  damage-feasant,  and  the  plaintiff"  pleaded  in 
bar  a  right  of  common  in  six  acres  of  land,  alleging  that  the 
locus  in  ijiio  was  parcel  thereof,  and  the  defendant  replied  that 
the  puiintiff/or/ji.- .'/y  had  common  in  forty  acres,  v.'hereof  the 
said  six  acres  were  and  are  parcel  and  all  lying  open  together, 
and  that  the  plainiiff"  before  the  distress,  purchased  two  acres 
p;axel  of  the  said  forty  acres,  v/hereby  the  right  of  common 
became   extinguished,  as   tliis  replication   did  not  confess  and 


{q)  1  Sauiul.  10;3.  b.  as  to  when  a  traverse  is  necessary  in 

(r)   I  L(i.  Rayrii.  G41.  general,    see  Com.  Dig.  Ploiider,  G.  1 

(.t)  I  Burr.  320.  to  1-1.     Buc.  Abr.  Picas  and  Pleading, 

(0    Ante,  586,  587.  H,     1  H.  Bl.  376  to  412. 

(6)    When  necessary  to  shew  a  tl-  (J)    Cro.  Eliz.  30.      Cro.  Jac.  682. 

tlein  ai-epiitation.     Com.  Dig.  Plead-  Cry.   Eliz.  651.     6  Co.  25.   b.     Dyer, 

er,  F.  13.  G.  3.  312.  b.     Com.  Dig.  Pleader,  G.  2,3. 
<<■)  I  Wils.  253.     1  Suiiud.  22.  n.  2. 


TO  A  SPECIAL  PLEA.  594 

avoid  the  plea  in  bar,  11  was  held  bad  for  not  traversing:  the  //.  The  ht,dy. 

right  ol  common  in  six  acres  only  :(tO  so  ii' a  custom  be  plead-  2(Uy.  Di  ,ial 

■  ,  .  ,  of  the  pica. 

ed,  another  custom,  repugnant  to  it,  cannot  be  replied  without 

a  traverse,  but  a  custom  or  matter  consisient  with  it  may.'/) 
In  real  actions,  and  in  quarc  imjicdit  the  pLiintitV  (then  called 
the  demandant)  must  Irequentiy  state  a  tide  in  his  replication 
inconsistent  with  that  oi  ilie  defendant,  in  which  case  a  tra- 
verse is  necessay  ;( g)  *bu\  in  personal  actions  it  is  not  in  ge-  *  595 
neral  necessary  to  state  a  title  in  the  replication,  when  the  de- 
fendant by  his  plea  admits  the  plaintiff  to  be  in  poascasion^ 
which  is  sufficient  against  a  wrong  doer  •,{h)  as  if  in  trespass 
(juare  clumum  frcgii^  the  defendant  plead  that  E  F  was  seised 
in  lee  of  the  locus  in  quo^  and  cuieofled  G  //,  who  thereby 
became  seised,  and  being  so  seised  enicofted  the  defendant, 
by  which  he  became  seised  until  the  plaintiff,  claiming  by  co- 
lour of  a  prior  deed  of  feoffment  made  by  E  F,  by  which 
nothing  passed,  entered,  Sec.  here  the  plaintiff  rnay  well  tra- 
verse the  feofl'ment  supposed  to  have  been  made  by  F,  F  to 
G  H,  without  making  title,  because  the  defendant  admits  the 
plaintiff  to  be  in  possession  by  virtue  of  what  amounts  to  an 
estate  at  will,  but  if  the  plainlifi"  were  to  traverse  the  title  of 
E  F,  then  he  must  state  his  own  title  and  conclude  with  a 
traverse. (0 

When  a  formal  traverse  is  adopted,  it  ought  to  be  introduced 
with  a  proper  title,  or  iuducnnent^k)  Where  no  new  mater  is 
stated  in  the  replication,  and  a  formal  traverse  isadopted,  (though, 
as  we  have  seen,  unnecessarily,)  it  is  usual  in  trespass,  after  the 
woviis  fire c III di  non^  kc.  to  induce  the  traverse  with  the  allegation, 
"  that  the  defendant  of  his  own  wrong  committed  the  lres[)asses 
"  complained  of  in  manner  and  form  as  the  plaintilT  hath  ( om- 
"  plained  against  the  defendant,  nvithout  thin  that"  Sec.  denying 
the  right  of  common,  or  way.  Sec.  as  stated  *in  the  plea,  and  con-  ^  „j^^ 
eluding  with  a  verihcalion  ;(/)  but  where    Jieiv  matter  is  to  be 


(e)  1  Leon.    43,    44.      Com.    Dig.  (A)  Id-  il;i(l. 

l'lc:i(!er,  G.  2.  (?)  Sco  the  case  in  Po])ham,  1,  2. 

(/)   1  AVils.  253.     B.1C.  Abr.  Pleas  (A)  Com.  Dig.  Pleader,  (;.  20. 

and  Pleading,  H.  (/)  See    the  precedent,  Rast.  Ent. 

(^)  Cro.  Eliz.  288.  670.    Com.  Dig.  622,  623.     Co.   Ent.   656.     We  have 

Plea<ler,  F.  l.?.      Com.  Dig.  Pleader,  jus(  secji  that  a  formal  traverse  is  not 

3  I.  If.  noccssurv  in  this  case. 


596  FORMS  AND  PARTS  OF  REPLICATIONS 

//.  The  body.  Stated  as  inducement  to  the  traverse,  it  must  appear  to  be  suf<i 

-'I'y-  l>en':tl     ficient  in  substance  to  defeat  the    oiiiiosUe   party's    allegation, 

ol  tiie  plea.  .  .  .  .  ^  ^  '        •'  b  » 

and  it  a  defective   title  be  shewn,  the  inducement  will  be  bad, 

thou,e;h  in  stating  it,  so  much  certainty  does  not  appear  to  be 
requisite,  as  in  other  parts  of  pleading,  because  it  is  seldom 
traversable,  the  other  party  being  in  general  compeliabie  in 
his  rejoinder  or  other  pleading,  to  adhere  to  his  own  allega- 
tion, which  has  been  traversed. (/n^  The  usual  words  of  the 
beginning  of  a  traverse  are,  "  without  this  that."  &c.  {absrue 
hoc  ;)  but  any  words  amounting  to  a  denial  of  the  allegation  of 
the  other  party  are  sufficient,  as  "  et  non"  kc.(7z)  The  tra- 
verse must  neither  be  too  large  nor  too  narrow  ;  and  though  it 
is  in  general  in  the  negative  of  the  words  of  the  plea,  yet  time 
and  place,  or  other  matter  when  immaterial  must  not  be  in- 
cluded ;(o}  the  W'ords  in  manner  and  form.,  as  the  defendant 
hath  in  his  said  plea  above  alleged,  may  be  added,  for  they 
only  put  in  issue  matter  of  substance. (/i)  '1  he  conclusion  must 
in  general  be  with  a  verification,  unless  where  no  new  matter 
is  stated  by  way  of  inducement,  or  where  the  traverse  com- 
prises the  whole  matter  of  the  plea,  in  which  case  it  may  be 
*   597  *^^  ^'^*^  coimtry.((/)     It  is  a  general  luie  that  there  cannot  be  a 

traverse  after  a  traAerse  where  the  first  was  material,  and  of 
matter  necessarily  allegx-d  ;(r)  as  if  the  plaintiff  has  declared 
on  a  seisin  in  fee  in  5,  who  granted,  &c.  and  the  defendant 
shews  a  seisin  fiur  autre  vie,  and  traverses  the  seisin  in  fee, 
the  plaintiff  cannot  waive  such  traverse,  and  traverse  that  he 
was  seised  Jnir  autre  I'ie,  for  this  v.ould  be  a  departure  from^ 
and  desertion  of,  his  prior  allegation,  and  the  parties  are  not  to 
goon  ad injinitujn.{s)  In  some  cases,  however,  a  traverse  may 
be  taken  after  a  former  apt  and  pertinent  one  ;  as  where  in  a 
transitory  action,  there  is  a  special  local  justification  with  a  tra- 
verse of  the  place  laid  in  the  declaration,  the  piaintiflf  may  either 


(/h)    Com.   Dig.   Pleadei-,    G.    20.  {q)  \  Saund.  10.3.  a.  b.     Doug.  428. 

When   not,    see  id.    G.    17,    18.       1  (r)    Com.    Dig.    Pleader,     G.    17. 

iSaund.  22.  n.  2.  ^'aiiglian,  62      1    H.    Bl.   376  to  412. 

(7i)  C;)m.  Dig  Pleader,  G.  I.  and    sec    the    reasons,   4  T.   R.  439. 

(o)    Ante,   586,    587.      Bac.    Abr.  tliough   the  dechion  was  revei-scd  ifl 

H.  5.  5T.  R.  .367.     2H.  Bl.  182. 

(/))2Leon.  5.     Hardr.  39.    Com.  (.9)  Id,  ibid. 
Di^'.  Pleader,  G.  I. 


TO  A  SPECIAL  PLEA.  597 

join  in  tiie  defendant's  traverse,  or  traverse  the  special  justilica-  //.  The  bodij. 

tion,  for  in  this  case  the  niace  laid  in  the  declaration  being  im-  Sdly.  Denial 
'  01  the  plea, 

material,  the  plaintiff  is  not  bound  by  it  ;(/■)  and  the  same  rule 

prevails  where  time  or  any  other  immaterial  matter  alleged  in 
the  declaration,  is  traversed  in  the  plea.(Ty)  And  if  a  traverse 
be  of  matter  immaterial,  or  of  an  inference  of  law,  or  not  to 
the  substance  and  point  of  the  action,  the  other  party  may  either 
demur   specialiy,  or  may  pass  it  by,  and  tender  another  *tra-  *   598 

verse  ;(iO  and  the  king  is  allowed  to  take  a  traverse  after  a 
traverse,  where  his  title  appears  by  office  or  other  matter  of 
record  ;  though  if  it  do  not  so  appear,  such  :iccond  traverse 
cannot  be  taken.  (7t')  A  drfcct  in  a  traverse  can  only  be  taken 
advantage  of  by  special  demurrer  ;  and  therefore  it  was  decided, 
that  where  the  inducement  to  a  traverse  confesses  and  avoids 
the  other  party's  title,  the  traverse,  though  idle  and  bad  on 
special  demurrer,  is  aided  upon  a  general  demurrer,(.r)  and  an 
immaterial  traverse, (V)  or  the  want  of  a  traverse  when  neces- 
sary, is  aided  upon  a  general  demurrer,  and  by  verdict  or  plead- 
ing over.(-:) 

With  respect  to  a  replication  denying  the  effect  of  the  filea  SiWj.  A  de.- 
and  aheiuing  a  particular  breach^  without  confessing  and  avoid-  Unsr' a  breach, 
ing  the  plea,  it  most  frequently  occurs  in  debt  on  a  bond  condi- 
tioned to  perform  covenants,  &c.(a)  The  rule  is,  that  in  all  cases 
(except  in  the  case  of  an  award  which  stands  upon  a  particular 
ground,)  when  the  defendant  pleads  matter  of  excuse,  which 
admits  a  non-performance,  it  is  sufficient  if  the  plaintiff  deny 
the  plea,  and  he  need  not  assign  a  breach  in  his  replication  ; 
but  it  is  otherwise  where  the  defendant  has  pleaded  perform- 
ance ;(6)  in  the  latter  case  to  a  plea  of  general  performance  of 
the  condition  of  the  bond,  the  replication  must  state  the  breach 


(0  1    Siiund.  22.   u.  2.     Com  Di^.  (w)  Vaiighan,  02.  Com.  Dig.  Plcad- 

Pleafler,  G.  IS.     liac.    Abr.  Pleas,  H.  er,  G.  1'.  19.  • 

4.     Lutw.  14.38.     1  H.  Hi.  403.     4  T.  (x)    1    Saund.   207.   n.  5.  22.  n.  2. 

11.  439,  440.  reversed,  see  5  T.  R.  367.  Com.  Dig,.  Pleader,  G.  22. 

2H.  Bl.  182.  {if)  1    Saiind.   14.   n.  2.     4  Ann.  p 

(t>)  Id.  ibid.  IG.  s.  I. 

00  2  H.  HI.   ISO.     1  Sauiul.  22.  n.  (=)  Com.  Dig.  Pleader,  G.  22.     1 

2.     Com.  Dig.   Pleader,  G.  19.     Bac.  Sauiul.  14.  n.  2. 

Abr.  Pltsasj  11.4.    1  II.  Bl.  402,  403.  («)  Com.   Dig.  Pleader,  F.  14,  I"", 

(/>)  Willcf^,  12.  13. 


599*  FORMS  AND  PARTS  OF  REPLICATIONS 

//.  The  body,  witli  *pardcularity,  am!  should  coticlude^  with  a  vetification,  in 

2(llV.      Uciliill  !  .1  !  I       I-  !  .  !  '  •  C 

of  the  pica.  order  that  the  detenduni  may  have  an  opportuiuty  of  answering 
it;(r)  and  in  debt  on  a  bond  conditioned  for  the  performance 
of  an  award,  if  the  defendant  has  pleaded  no  award,  the  repli- 
cation must  state  the  whole  of  the  award  verbatim^  and  also  as- 
sign a  breach  ;(of)  and  in  the  case  of  bonds  affected  by  the  8  th  and 
9th  Wm.  \l\.c.  11.  s  8.  the  p'.uintiff  should  state  in  his  replica- 
tion, or  sut^gest  in  case  non  est  factum  be  pleaded,  all  the  breach- 
es of  the  bond,  &c.  on  which  he  means  to  reiy.(f) 

3dijr.  Confes-       '1]\q  third  description  of  replication  admits  either  in  words 

sion  ami  avdi-  _  '  _ 

<liiMce  of  die  or  in  effect,  the  fact  alleged  in  the  plea,  and  avoids  the  effect 
of  it  by  stating-  new  matter ;  and  this  replication  frecjuently  oc- 
curs in  practice  ;  thus,  if  infancy  be  pleaded,  the  plainlift'  may 
reply  that  the  goods  were  necessaries,  or  that  the  defendant  af- 
ter he  came  of  age,  ratified  and  confirmed  the  promise  ;(y) 
or  in  replevin,  to  an  avowry  by  a  freeholder  for  a  distress  da- 
mage feasant  .^  the  plaintiff  may  pleatl  in  bar  a  demise  to  him 
from  the  defendant ;( g)  or  in  trespass,  where  the  defendant 
has  pleaded  .von  assault  demesne^  the  plaintiff  admitting  that  he 
made  the  first  assault,  may  reply  shewing  that  it  was  justifia- 
ble •,{h)  so  to  a  plea  justifying  under  a  warrant  upon  an  informa- 

*  600  tion  for  treasonable  practices,  for  which  *offence  the  plaintiff 
had  been  admitted  to  bail  by  the  Chief  Justice  of  the  King's 
Bench,  the  plaintiff  should  confess  and  avoid  the  plea  by  reply- 
ing a  tender  and  refusal  of  bail  ;(i)  and  to  a  plea  of  liberum 
tenementum^  the  plaintiff  niay,  as  in  replevin,  reply  a  demise 
from  the  defendant, (^A-)  or  from  some  person  seised  of  the  estate 
before  the  defendant  had  or  claimed  to  have  any  interest  in  the 
locus  in  (]UQ  ;{j[)  or  if  the  defendant  has  justified  under  a  de- 
mise, he  may  shew  a  notice  to  quit,  or  to  a  justification  under 


(c)  2  Burr.  7/4.  I  Suund.  101, 102.  (/)  Post,  vol.  2.  594,  595. 

PoKl,   vol.    2.    6'22,    62.3.     Com.    Mi^.  (5-)  Post,  vlI.  2.  634. 

Pleader,  F.  14,.  15.     2  New  Kep.  .363.  {h)  Po.st,  vol.  2.  642,  643. 

{(l)  Post,  vol.  2.  619.     Willes,  12.  (/)  Ante,  563.     2  Bl.  Rep.  1155, 

2  SaiiiKi.   62.  b.  n.  5.     1  Salk.  72.     1  \h)  Post,  vol.  2.  648.     Willes,  225. 
Bun-.  281.  1  Saund.  317.  103.  n.  I  &  4.     1  Kail    212. 

(e)  See  1  Saund.  58.  n.  I.   2  Sauiid.  (/)  Willes,  225.     Dyer,  171.  b. 
187.  a.  n.  2. 


TO  A  SPECIAL  PLEA.  qqq 

a   distress  damagc-fcasunt,  may  reply  a    subsequent  conver-  //•  The  botly. 

.  3(ily.    (Jonfes- 

SlOn-C")  sionand  uvoi- 

III  replications  of  this  description  it  is  necessary  that  the  ma-  <lance  of  the 
p  .  .  .  plea 

terial  parts  of  the  deiendant's  title  be  admitted  either  in  terms 

or  in  effect  ;(/0  and  it  is  not  unusual  to  admit  the  material  facts 
alleged  in  the  defendant's  piea,  in  express  terms,  by  stating 
after  the  words  prediuli  non^  "  tiiat  although  true  it  is  that  the 
"said  demise  was  made  to  the  said  defendant,  as  in  his  said 
"  plea  is  alleged,  yet  for  replication  in  this  behalf,  the  said 
"  plaintifi"  in  fact  sailh  that,"  &c.  but  where  the  plaintiff  in  the 
subsef^uent  part  of  his  replication  claims  immediately  from  the 
defendant,  or  states  generally,  "  that  before  the  defendant  had 
"  any  thing  in  the  locus  in  quo"  8cc.  this  form  appears  unne- 
cessary ;(o)  though  it  may  be  advisable  to  adopt  it,  when  the 
plaintiff  claims  title  from  a  party  alleged  to  have  been  seised 
in  fee  prior  to  the  party  *under  whom  the  defendant  claimed. (/?)  *   501 

Wlien  the  leplication  completely  confesses  and  avoids  the  de- 
fendant's plea,  it  should  not  conclude  with  a  traverse, (7)  and 
there  is  no  occasion  to  give  colour  to  the  defendant  in  this  re- 
plication ;(r)  though  as  it  introduces  new  matter,  it  must  con- 
clude with  a  verification,  in  order  that  the  defendant  may  have 
an  opportunity  of  answering  it.(.s)  A  replication  of  this  nature 
must  confess  as  well  as  avoid  the  effect  of  the  defendant's 
plea,  and  if  the  plaintiff  rely  on  some  excess,  as  an  impri- 
sonment vmder  colour  of  process  after  a  voluntary  escape,  this 
matter  should  be  new  assigned,  and  not  replied  ;(()  for  a  rc- 
filication  must  always  state  matter  which  entitles  the  plaintiff 
to  his  action  for  the  same  trespasses  which  are  mentioned  in 
and  attempted  to  be  justified  by  the  plea,  of  which  description 
are  replications  of  new  matter  shewing  that  the  plaintiff  is  a 
trespasser  ab  hiido  ;{v^  but  when  the  plaintiff  relies  on  tres- 
passes different  from  those  pleaded  to,  he    must  nenv  assign.(u) 


(w)  3  Wils.  20.  (,)  1  Kast,  212. 

(/i)   Dyer,   171.  b.     Sir  W.  Jones,  (.?)  1  Saiiiid.  103.  imioiia. 

352.  \t)  2  AAlls.  .3,  4.     2  T.  K.  172. 

(0)    Id.   ibid.   Post,  vol.  2.  648.     I  \v)    1    Saund.  300.  a.     3  Wils.  20. 

East,  212,  213.  3  T.  R.  2'jr,  2'J8.     1    H.  Bl.  5G0,  5C1. 

(/>)  Id   ibid.     Sr  W.  Jones,  352.  (m)  2  Wils,  4. 

(9)  1  Saund.  22.  n.  2.    2  Saund.  28. 
n.  2.    Com.  Dig.  Pleader,  2  G.  3. 

Vol.  L  I  55  ,1 


601  FORMS  AND  PARTS   OF  REPLICATIONS 

II.  Tlie  bodfj.        The  foicrf/i  description  of  replication,  if  it  muy  he  so  termed, 

•ithly.    N(  w        ;  r     s       t,  ,  ,.'      .  , 

assiffiu.ifuiH  '^  "''''''  o-(<fiignmmtXiu)      I  iiouj;h  a  repliCcction  nmst  not  depart 

from  any  muieriai  alles^ation  in  the  declaration,  yet  where  there 
'■^    602  is  an  cvudvi   plea,   either  as  to  *the   wliole   or  a  part  of  the 

cause  of  action,  the  plaintiff  may  avoid  the  effect  of  it  by  re- 
stating the  injury  for  which  he  meant  to  declare,  with  more 
particularity  and  certainty,  consistently  however  with  the  more 
general  complaint  in  the  declaration  ;  and  this  is  termed  u  ncu) 
or  nox'cl  as^sig?i7?ic>it,  and  may  be  either  as  to  time,  place,  or  any 
other  circumstance,  when  material.{x)  It  is  frequently  neces- 
sary, in  order  that  the  defendant  may  have  notice  of  the  real 
ground  upon  which  the  plaintifi' proceeds  ;(j/)  and  when  from  the 
nature  of  the  action,  as  m  trespass  <,uare  clausum  fregit^  the 
derlaration  is  so  framed  as  to  be  capable  of  covering  several  in- 
juiies.  committed  at  different  limes,  or  in  different  pans  of  a 
close,  &c.  the  plaintiff  may  frequently  reply,  not  only  denying 
the  right  of  common,  or  way,  &c.  stated  in  the  plea,  but  also 
new  assi;i:ning  trespasses  committed  at  different  times  or  in 
difl'eient  pciris  of  the  close,  to  those  nientioned  in  the  plea. (2) 
But  wh.re  the  nature  of  the  act  complained  of  is  ningle.,  or  (he 
plea  does  not  at  all  meet  the  declaration,  or  the  plaintiff  does 
not  mean  to  dispute  it,  as  if  it  justify  a  trespass  in  some  other 
place  of  the  same  name,  or  a  different  assault  to  that  intended 
to  be  complained  of,  the  plaintiff  should  in  that  case  merely 
new  assign,  without  traversing  any  part  of  the  plea.(fl)  A  new 
assignment  may  be  made  in  most  actions,  whether  in  for?n  ex 
contractu  or  ex  deiicto.ib)  but  it  more  frequently  occurs  in  tres- 
*   603  puss  ;  and  in  *replevin,  as  the  plaintiff  must  shew  the  place  in 

certain  where  the  taking  was,  it  is  said  that  there  can  be  no 
new  assignment  as  to  the  place. (c)  If  to  an  action  oi  assuni/isit 
for  goods  sold,  the  defendant  has  pleaded  a  judgment  recover- 
ed, and  in  fact  the  plaintiff  has  obtained  a  judgment  in  ano- 


(w)  As  to  new  assigarnents  in   ge-  (v)  t  H.  Bl.  560.  5C2. 

iieral,   see   I    Saund.  299.  ti.  6.     Vin.  (:)  1  Sauiid.  500.  w  notis. 

Al3r.  lit.  Trespass,  U.  a.  4  k  tit.  No-  {a)  1  Saund.  300.  a. 

vel  Assig-nmeiit.   R:;i-.  Abf.  Trespas.s,  (I/)  Vin.    Abr.  Novel  Assignment, 

I.  4.  2.     Com.  Ui:<.  Pleader,  3  M.  3  ; .  pi.  4,  5.     Bac.  Abr.  Trespass,  I.  4.  2 

See  the  forPiS,  post,  vol.  2.  6.'i2to  657.  (c)  Freem.  238. 

(.r)  3  Bl.Com.  31). 


TO  A  SPECIAL  PLEA.  6Q3 

ther  nction,  though  for  clifferen    goods  and  causes  of  action,  n.  The  bodn. 
the  pluinliff  oue;ht  not  to  reply  nul  Utl  records  but  should  new  ^^^}y-  -^'ew 

'  ^  '^  ■'  assignment*;. 

assign  that  his  present  acdon  is  brought  for  the  non-perform- 
ance of  other  and  different  pronuses.(af)  So  if  in  case  for  the 
publication  of  a  libel,  without  mentioning  the  particular  per- 
son to  whom  ii  was  pubiisiied,  the  defendant  has  pleaded  that 
he  published  it  lawfully,  as  to  members  of  a  committee  of  the 
house  of  commons,  and  the  plaintift'  proceeds  for  a  publication 
to  other  persons  not  members  of  the  commitice,  he  siiould  re- 
ply or  rather  new  assign  such  iiiegal  publication. (e)  bo  m  an  ac- 
tion for  an  escape,  if  the  defendant  plead  a  negligent  escape 
and  voluntary  return,  the  plaintiff  should  new  assign  a  subse- 
quent escape  ;(/)  and  if  in  case  for  disturbance  of  a  right  of 
common,  by  cutting  turves,  the  defendant  picad  that  he  cut 
the  turves  as  servant  of  the  lord  of  the  manor,  the  plaintiff 
may  new  assign  that  the  defendant  cut  other  turves  for  sale, 
and  not  for  the  use  of  the  lord.(^)  It  is  a  general  rule  that 
where  the  defendant  has  committed  sevtrul  trespasses,  either 
upon  the  person,  personal  property,  or  real  property  of  ano- 
ther, some  of  which  were  justifiable  *and  others  iioi,  and  the  *  604 
action  is  brought  for  those  trespasses  which  were  not  justifi- 
able, but  the  defendant  by  his  plea  answers  those  only  which 
were,  then  the  plaintiff  should  new  assign. (/;)  i'hus  in  an 
action  of  trespass,  if  there  have  been  two  assaults,  the  one 
justifiable  and  the  other  not,  and  the  declaration  only  contains 
one  count  for  an  assault,  and  the  defendant  pleads  aon  asaault 
demes7ie,  the  plaintiff  should  new  assign  the  illegal  assault  •,(}) 
but  if  there  are  as  many  counts  as  there  were  assaults,  8cc.  and 
some  of  them  cannot  be  justified,  the  plaintiff"  may  prove  those 
without  a  new  assignment  ;  and  it  would  often  be  injudicious 
in  such  case  to  new  assign  ;  for  where  the  declaration  contains 
just  as  many  counts  as  are  equal  to  the  number  of  assaults, 
&c.  as  where  there  have  been  two  assaults,  Sec.  and  there  are 


(J)  Post,  vol.  2.  65-2.     G  T.  R.  C07.         (/)   1  Sauiid.  299.  a.  n.  f..     2  S-aiind. 

iWcntw.  151.  5.  note  3.  at  coiitliisioii.     2Ld.  iiayiu. 

(c)  2  Saiuul.  133.  1015.      T?u!l.  N.  P.   17.       1  Esp.  Rep. 

(./")   1  B.  k  P.  41,>.  38.       6  M<h\.  117.        1  Sclwyn,  N.  P. 

{g)  Willes,  G19,  020.  32.  arc.     Cro.  C;^i-.  514,  51.5.    routni,- 

(h)  1  Sa«ijd.  29.9.  a.  u.  6.  not  law. 


(J04         FORMS  AND  PARTS  OF  REPLICATIONS 

77.  The  body,  two  counts  and  the  defendant  pleads  the   general  issue  to  the 
4tlily   New      -yyi^oig  declaration,  and  a  justific-ition  to  due  of  the  counts,  the 
plaintiff  had  better  put  the  jusiification   in   issue,  and  in  case 
the   defendant   proves  it,  give  evidence  of  tlie  second   assuult 
Upon  tlie   second   count,  than   make  a  new  ussitrnment ;  for  if 
the  plaintiff  f^iil  in   the   proof  of  the   allegation  in  the  new  as- 
signment, he   cannot  afterwards    have  recourse  to  the  second 
count,  because    l)y   the   new  assisjjnment  he  acknowledges  that 
one  of  the  assaults,  &;c.  is  justified,  and    has    therefore    aban- 
doned one  count,  and  relies  upon  tlie  assault,  Sec.   in  the  new 
*   605         assignment,  therefore  *he  cannot  avail  himself  of  one  and  the 
same  act  of  assault,  Sec.  both  on  the  new  assignment  and  on 
the  second  count ;  but  if  the  plaintiff  can  prove   two  assaults, 
&c.  besides  that  which  he  has  waived,  he  might  do  so  upon  the 
second  count. (_;')     So  if  in  answer  to  a  plea  justifying  under 
process,  kc.  the  plaintiff  rely  on  an  assault,  &c.   before  the  is- 
suing of  the  writ,  Sec.  or  after  the  return  of  it,  or  alter  the  de- 
fendant   was  dischars^ed  by  the  pluuiliff  in  the  original   action, 
or  after  a  voluntary  escape,  that   matter  should  be  new  assign- 
ed,(/:)  and  if  the  answer   to   a   plea  of  non  assault  demesne  be 
that  the  defendant  was  guilty  of  an  immoderate  battery,  more 
than    was  necessary  in  self-defence,  it  may  be  put  on   the  re-' 
cord  ;(/)  and  it  is  not  unusual  in  these  cases  to  deny  the  subject 
matter  of  justification,  and  also    to    new    assign,  though  this 
mode  of  pleading  may  be  objectionable  for  duplicity. 

In  actions  of  trespass  to  personal  property,  as  there  may 
have  been  two  takings,  or  two  injuries  commifed  to  the  same 
property,  consequently  there  may  be  a  new  assignment  ;'^m) 
and  if  in  trespass  for  taking  personal  properly,  the  defendant 
by  his  plea  make  a  local  jusiification,  the  pltdntiff  may  new  as- 


(  /)    I  Saund.  299.  n.  b.  note  6.     2  stead  of  new  assignment,  because  it 

T.  11.  1~7.  shews  the   defendant  a  trespasser  ab 

{k)  I  Saund.  299.  and  id.  299.  n.  6.  initio,  1  Sauad.  300.  a.      3  T.  It.  2<%. 

See  the  precedents  and  law,  2  Wils.  1  H.  Bl.  560. 

4.     2  T.  K.  172.  k  post,  vol.  2.  654.  {m)  6  Mod.   120.    Vin.  Abr.  Tres- 

(/)  \\  ilks'  Rep.  XT.  n.  b.  sed  quxre  pass,  U.  a.  4.  pi.  22.    Bac.  Abr.  Tre?* 

if  it  should  not  be  bj'   replication,  in-  pass,  I.  4.  2. 


TO  A  SPECIAL  PLEA.  605 

sign  ;(n)  as  where  to  trespass  for  taking  away  the  plaintiff's  oaks,  //.  The  body. 
the  defendant  *pleaded  that  the  oaks  were  standing  in  a  cermin  4thly.  New 

^      •  ■        ,  r   ^       ,       r       ^     \  ■      r   r-     assignments. 

close  called  ^i  situate  in  the  manor  ot  O,  the  ireehold  ot  B,  ^  f,()ft 
wliu  felled  them,  and  justifies  taking  them  away  by  the  com- 
mand of  By  il  was  held  that  the  plaintiff  might  new  assign 
that  the  oaks  were  growing  in  the  plaintiff's  close  within  the 
nianor  of  H\  and  were  other  oaks,  S<,c.  than  those  mentioned 
in  the  plea,  and  in  these  transitory  actions,  not  only  the  pi.ice 
but  the  time  may  be  made  material  by  the  plea,  and  then  tne 
plaintiff  must  new  assign  tlie  trespass  at  another  time.'  o)  So 
in  an  action  for  breaking  and  entering  the  plaintiH  's  house,  or 
land,  or  felling  his  timber,  or  taking  away  his  guods,  if  the 
delendanl  plead  a  license^  which  the  plaintiff"  had  revoked  be- 
fore any  of  the  trespasses  were  committed,  or  which  was  con- 
fined to  some  particular  act,  and  the  defendant  exceeded  it, 
the  plaintiff  must  state  the  revocation  or  excess  in  a  new  as- 
signment.(/z) 

In  trespass  to  real  /iTo/terty  if  the  declaration  does  not  state 
the  name  or  abuttals  of  the  close.  Sec.  with  such  precision  as 
to  avoid  the  possibility  of  the  defendant's  having  a  close,  &c. 
in  the  same  parish  of  a  similar  description,  and  the  deiendant 
has  pleaded  Ubi-ruin  tenemtntum^  without  describing  the  close, 
the  plaintiff  should  new  assign  and  not  take  issue  on  the  plea, 
for  if  he  were,  he  would  fail  upon  the  trial,  if  the  defendant 
*could  shew  that  any  close  in  the  parish  or  place  stated  in  the  ^^    60"^ 

declaration  was  his  freehold.(i;/)  But  where  the  plaintiff  and 
defendant  agree  as  to  the  close,  the  plaintiff  cannot  new  as- 
sign a  trespass  out  of  it^  for  that  would  be  a  departure  from 
his  declaration.(r)  If  the  defendant  professing  to  answer  the 
whole  declaration,  does  in  reality  justify  only  part  of  the  ties* 


(n)  1  SauncI  300.  a.      Bull.  N.   P.  (/»)  1  Saund.  300.  a.       2  Saund.  5. 

92.      Cro.  Jac.  141.      Freem.  238.     1  coticlusion  cf  i^.te  3. 

Salk.  453.      Coke  ■».  Evans,    6  Mod.  ( ry )  'i  Salk.    45.5.       6  Mod.   119-— 

120.      Gould.    191.       Vin.   Abr.   tiu  \\  illes,  223.     2  Bl.  Ri-[,.  lOS-.    7  T. 

Trespass,    U.  a.  4.  pi.   16.  lil.  Novel  K.  335.     1  .Saund   29'J.  b.  c.      Ather- 

Assigutneiit,  A.  pi.  9.  ton  m.  Pricliard,  E.  43  G«'f'.  £11.  (jom. 

(o)     Id.   ibid.    2 1^.   Rajm.   1015.  big.   Pleader,    3  M.  Si  ace.     Dyoi-, 

l,ey.  110,  in.  2.1.  co?u/-. 

(;•)  1  Sannd.  30^. 


607  FORMS  AND  PARTS  OF  REFLICATIONS 

II.  The  body   pass  for  which   the  action  is  brought,  ^the  plaintiff  must  ne'ft' 

4thly.  New      assign  as  to  the  residue,  and  if  he  doubt   the  iruth  of  the  lus- 
"dssignmeiits.        .  ,       .  •' 

tiiication,   should   also  reply  to  it;  for  it   is  necessary  in  in  >ny 

cases  to  traverse,  or  oUiervvise  answer  the  plea,  and  uiso  to 
new  assign  ;  as  where  the  defendant  pleaded, Hhat  the  house 
mentioned  in  the  declaration  was  called  Chouse,  and  one  of 
the  closes  Black  Jcre,  and  the  other  White  Acre^  and  that  tliey 
were  his  freehold  :  the  plaintiff  traversed  that  C  house,  and 
Black  Acre  were  the  defendant's  freehold,  and  new  assigned 
the  trespass  in  twenty  acres,  other  than  IVhUc  Acre.,  and  it  was 
objected  that  the  new  assignment  was  a  waiver  of  the  former 
pleadings  as  to  all,  and  therefore  the  plainiiff  ought  not  to  have 
traversed  :  but  the  court  held  it  proper,  for  as  the  defendant 
had  pleaded  to  some  of  the  pKices,  in  which  the  plaintiff  in- 
tended to  lay  the  trespass,  the  plaintiff  was  at  liberty  to  answer 
that  part,  and  the  defendant  should  not  waive  the  plea  and  plead 
^  608  *"  '^^'  '^^  novo.{.s)  So  *where  an  action  was  brought  for  fishing 
in  the  liver  7',  being  the  plaintiff's  fishery,  and  the  trespass 
intended  by  the  declaration  is  for  fishing  to  the  extent  of  two 
miles  and  upwards  ;  if  the  defendant  plead  that  he  is  seised  in 
fee  of  ten  acres  adjoining  the  river,  and  prescribes  for  a  free 
fishery  in  the  river,  along  the  side  of  the  ten  acres,  the  plain- 
tiff ought  not  merely  to  traverse  the  prescription  and  go  to 
issue  upon  it,  because  at  the  trial  he  would  not  be  permitted  to 
give  evidence  of  any  act  of  fishing  by  the  defendant  either 
above  or  below  the  ten  acres,  for  the  question  would  be  con- 
fined to  the  prescription  only,  but  the  plaintiff  should  also  new 
assign,  and  state  that  the  trespass  complained  of  was  not  only 
for  fishing  in  the  river  adjoining  the  ten  acres  but  also  above 
and  below,  and  then  the  defendant  will  be  under  the  necessity 
of  giving  some  answer  to  the  whole  trespass  ;  and  it  has  been 
observed  that  in  this  case  without  a  new  assignment,  the  plain- 
tiff would  run  great  risk  of  being  tricked,  for  otherwise,  if  the 
prescription  vv'ere  found  for  the  defendant,  the  latter  would  suc- 
ceed in  the  action,  though  guilty  of  almost  the  whole  trespass 
for  which  the  action  was  brought.(i)  So  where  a  right  of  way 
is   claimed,  which   is  disputed  by  the  owner  of  the  close,  and 


(s)  Cro.  EUz.  S12.      1  Saund.  330.        (0  1  Saund.  300, 
HOte  6. 


TO  A  SPECIAL  PLEA.  608 

the  defendant  has  comnjitted  trespasses  in  other  parts,  besides  11.  The  body. 
those  over  which  he  claims  the    way,  if  the   defendant   plead  ^^''/j;,^'^^^ 
the    right  of  way,  the  plaintiff"  must  traverse   it,  and  further 
state    in    a    new   assii^riment,  that    the    delentkint    comniittcd 
♦trespasses  in  other  parts  of  the  close. (w)     So  where  in  tres-  ^   609 

pass,  a  yrant  of  a  way.  or  of  common,  has  been  pleaded,  if  the 
defenuant  has  used  the  way  Sec.  in  a  different  manner  from 
what  !.c  Was  entitled  to  do  under  the  grant,  the  plaintiff"  must 
new  assign  \{w)  thus  if  to  trespass  ..uare  claui^um  fregit  with 
cattle,  the  defendant  has  prescribed  for  commonable  cattle,  le- 
vant and  couc/mtit.  and  has  plei.ded  that  the  cattle  mentioned  in 
the  declaration  were  such  cattle,  and  in  truth  the  defendant  has 
put  on  such  cattle,  and  also  other  cattle  not  /cvunt  and  couchunt^ 
the  plaintiff  should  new  assign,  stating  that  he  brought  his  ac- 
tion tor  depasturing  the  common  with  other  cattle,  and  should 
not  traverse  the  Irvancy  and  couchancy .{x^  There  are  some 
replications  which  rather  partake  of  the  nature  of  new  assign- 
ments than  i*re  properly  and  strictly  so  ;  as  where  the  defend- 
ant has  abused  an  authority  or  license  which  the  law  gives 
him,  by  which  he  became  a  trespasser  ab  initio^  and  then  if  he 
plead  such  license  or  authority,  the  plaintiff"  may  reply  such 
abuse.(t/)  Many  of  the  replications  confessing  and  avoiding 
the  action,  which  have  been  considered  are  of  this  nature. (z) 
By  aew  assigning  the  plaintiff  may  frequently  obtain  full  costs, 
which  otherwise  he  would  not  recover;  thus  on  a  plea  of  not 
guilty  to  a  new  assignment  of  extra  xnam^  the  plaintiff'  though 
he  sliould  obtain  a  verdict  for  less  than  forty  shillings  damages, 
is  entitled  to  full  costs  without  a  judge's  *certificate,  unless  the  *   61.0 

Way  pleaded  was  set  forth  by  metes  and  bounds. (z) 

In  point  oi  form  there  are  two  modes  of  introducing  the 
niatier  new  assigned.  If  the  plaintiff"  traverse  the  plea  as  well 
as  new  assigns,  after  framing  the  replication  to  the  plea,  as  in 


(m)  1  Saiind.  .300.     SOD.  a.  Wils.   20.     3   T.   R.    292.     1  H.  Bl. 

(w)  1  Saund.  300.  a.  555.     1  T.  R.  338. 

(a-)  1    Sauiid.    .340.    d.   sed  qusere.         (z)  Ante,  fiOl. 
See  Ante,  .-iRS  (:)  Tidd's  Prac.  3d  edit.  88S.     4lli 

{»/)  I  baund.  300.  a.     8  Ce.  146.     3    edit.  867,  868.     1  East,  351. 


610  FORMS  AND  PARTS  OF  REPLICATIONS 

//.  The  boily.    ordinuiy  cases,  the  form  runs  thus  :(«)  "  And  the  said  plaintiff 

4thly.  New       u  further  saith,  ihiit  he  exhibited  his  bill  utijainst  the  suid  de- 
assigiinieiits.  _  ^ 

"  fendant,  and   brouglit  his  action  thereupon  not  only  for  tae 

"  said  several  trespasses  in  the  said  second  plea  mentioned,  and 
"  therein  attempted  to  be  justified,  but  also  ior  ihat  the  saidde- 
"  fendant  on,  &.c.  at,"  &c.  (stating  the  matter  new  assigned  ;)(6) 
but  if  the  plaintiff /«6'7-f/y  new  assigns,  then  the  form  is  thus: 
"  And  as  to  the  s<-.id  plea  of  the  said  defendant  by  him  second- 
"  ly  above  pleaded,  the  said  plaintiff  saith,  that  he  by  reason  of 
"  any  thing  by  the  said  deftudant  therein  alleged,  ought  not  to 
"  he  barred  from  having  and  maintaining  his  afoiesaid  action 
**  thereof,  against  the  said  defendant,  because  he,  saith  that  he 
"  exhibited  his  bill  against  the  said  defendant,  and  brought  his 
"  suit  thereupon,  not /or-  the  said  supposed  trespasses  in  the  in- 
"  troductory  part  of  the  said  second  plea,  mentioned,  but  for  that 
"  the  said  defendant  on,  Sec,  at,"  8cc.  (stating  the  matter  new 
assigned.)(c)  A  new  assignment  being  in  the  nature  of  a  new 
*   fill  declaration,  should   be  equally  certain   as  to  time,  *place   and 

other  circumstances,((/)  and  it  must  not  be  negatively  thai  tlie 
trespasses  mentioned  in  the  plea  were  not  the  same  as  those 
for  which  the  plaintiff  complained,  but  some  other  trespasses 
must  be  shown  (c)  If  the  new  assignment  be  in  another  close 
or  /ilace,  the  plaintiff  should  give  the  place  a  name,  or  other- 
wise describe  it  with  some  certainty,(y")  and  which  on  not  guil- 
ty thereto,  must  be  proved  as  stated  ;(§•)  and  if  it  be  in  the  fiume 
close,  it  is  said  the  particular  spot  should  be  set  forth  in  such 
a  manner  as  that  a  plain  difference  may  be  perceived  between 
the  place  so  new  assigned  and  tliat  mentioned  in  the  plea  ;(/i)  but 
where  a  right  of  way  is   pleaded  it  is  usual  to  new  assign  ex- 


(c)  See  tlie  forms,  post,  vol. -2.  654,  (A)  1  Saund.    299.   c.     Vin.    Abr. 

655,  656.  tit.  Novel  Afsigiiment,  A.  Bro.  Tres- 

(6)  Post,  vol.  2.  656.    1  Saiintl.  300.  pass,  2(.)3.     See  the  form,  post,  vol.  2. 

(c)    See  the  form,    vol.  2.  657.     2  656.     2  Co.  6.  a.  18.  b. 

Co.  6.  a.  18.  b.     1    Saund.  300.  a.     2  {g)  Com.  Dig.  Pleader,  3   M.  34. 

Co.  6.  a.  IS.  b.  'N'in.    Abr.   Trespass,  U.  a.  4.  pi.  13. 

(</)  Com.  Dig.    Pleader,    3   M.  34.  &c.     Bull.  N.  P.  89.     1   Term    Rep. 

Vin.   Abr.  Trespass,   U.  a.  4.  pi.  13.  479. 

Bac.  Abr.  Trespass,  I.  4.  2.     Dyer,  (A)  Id.  ibid.     Yin.  Abr.  Trespass, 

25 i.  a.  U.  a.   I.  pi.  3. 

(e)  3 1.eou.  92  Post,  vol.  2.  652.  n.  e. 


TO  A  SPECIAL  PLEA.  ^U 

it'a  viam,  -without  shewing  in  what  particular  part  of  the  locus  11.  The  body. 

in  mio.ii)  '^^^.'- ■  ^''''' 

■'  assignnieuts. 

When  the  defendant  justifies  under  a  rit^ht  of  common,  or 
way,  &c.  at  particular  times  of  the  year,  or  in  particular  parts 
of  the  close,  &c.  the  plaintiff  may  new  assign  that  the  trespasses 
were  committed  "  at  other  tijua.,  and  on  other  occasion.s^  and 
^^for  other  and  different  Juirfwses  than  those  mentioned  in  the 
"  /ilea  ;"  or  that  the  defendant  "  in  a  greater  degree,  and  with 
*'  more  force  and  violence  than  was  necessary  for  removing 
''  *the  supposed  obstructions  to  the   said   supposed   way,  Sec.  *   612 

"  cut  down  the  gates,"  &c.(^)  The  matter  new  assigned  must 
be  consistent  with  the  declaration,  and  not  varying  from  or 
more  extensive  than  the  trespasses  therein  enumerated, (/)  or 
those  which  the  defendant  has  in  his  plea  professed  to  answer  ; 
for  a  new  assignment  is  merely  to  avoid  the  effect  of  the  plea, 
which  can  only  operate  upon  the  trespasses  thereby  admitted. 
It  should  also  only  be  of  material  matter  ;  and  therefore  if  the 
plea  set  up  a  right  of  way,  or  common.  Sec.  at  all  times  of  the 
year,  the  new  assignment  should  not  be  that  the  defendant, 
"  at  other  times,"  See.  time  in  that  case  being  immaterial  ; 
and  in  an  action  of  trespass  against  several,  if  some  of  the  de- 
fendants suffer  judgment  by  default,  and  the  otiiers  plead  a  justi- 
fication, the  new  assignment  should  be  as  to  ail  the  defendants, 
and  not  merely  to  those  who  have  pleaded,  for  that  would  be  a 
departure. (nz) 

The  conclusion  of  a  new  assignment  must  be  with  a  verifi- 
cation, in  order  that  the  defendant  may  have  an  opportunity  of 
answering  it,(n)  and  after  stating  the  matter  newly  assigned, 
tlie  form  usually  is  thus :  "  and  which  said  trespasses  above 
^'  newly  assigned,  are  other  and  different  trespasses  than  the 
<■'  said  trespasses  in  the  said  second  plea  mentioned,  and  there- 
*'  in  attempted  to  be  justified  ;  wherefore,  "inasmuch  as  the  said  jije-   g]^ 

"  defendant  hath  not  answered  the  said  trespasses  above  newly 


(i)  Post,  vol.  2.  65G,  657.      Sed  vid.  (m)  2  Leon.  199.  Com.  Dig.  Plead- 

Vin.  Abr.  Trespass,  U.  a.  4.  pi.  3.  er,  F.  11 . 

(fr)  See  the  forms,  post,  vol.  2.  65G,  (/j)    Bac.    Abr.  Trespass,   I.   4,  2, 

C57.  Lutw.  I4yi.     1  SauQd.  IQ3. 

(/)  Vin.  Abr.  Trespass,  U.  a.  4.  pi. 
\9.    Win.  G5.     4  Leon.  15,  IC. 

Vol.  I,  [  56  ] 


613  FORMS  AND  PARTS  OF  REPLICATIONS 

//.  The  body,  a  assisjned,  the  said  pluiniiff  prays  judgment,  and  his  damages 
4llilv.  Xcw       ,,  1       ,  •  •       ,  •  p    ,       '  •    •  1  i- . 

assimimc*tits.         "Y  ""^^  sustiuiud  on   occasion  ol  the  committing  thereoi  to 

"  be  adjudged  to  him,"  8cc.(o)  and  though  with  respect  to  the 

latter  part  of  this  conclusion  it  has  been  sdd  that  it  would  be 

more  correct  it"  it  were  to  slop  at  the  words,  "  et  hoc paratun  est 

"  verijzcare."  without  praying  judgment  against  the  defendant 

for  not  answering  the  trespasses  newly  assigned,  when  it  was 

impossible  he  should  answer  it  before  it   was  alleged  ;(//)  yet 

it  may  be  observed  that  matter  newly  assigned  is  always  c  onsi- 

dered  as   having  been  already  stated   in  the  declaration,   and 

consequently  the  defendant  migh»   have  answered  it. 

Pleixliiigs  A  new  assignment  being,  as  already  observed,  in  the  nature 

tJiei«oii.  ..  ,     ',        .  '     .       .     .  ,  .  I      ■• 

of  a  new  declaration,   and  dismissing   the  previous  pleadings 

from  consideration,  so  far  as  respects  the  matter  newly  assign* 
ed,  the  defendant  should  plead  to  it  precisely  as  to  a  declara" 
tion,(y)  either  by  denying  the  matter  new  assigned,  by  the 
plea  of  not  guilty,  Scc.(r)  or  by  ansv-ering  it  by  a  special  plea 
of  matter  of  jusiification,(.v)  and  he  may  plead  several  pleas  ;(0 
and  as  the  pluintiir  avers  that  the  trespasses  new  assigned  are 
other  and  diHercnt  to  those  mentioned  in  the  plea,  he  waives 
*  6l4  or  abandons  the  *trespasses  which  the  defendant  has  justified, 
and  it  is  not  necessary  to  plead  over  again  to  the  new  assign- 
ment, any  m..tler  of  justification  necessarily  covered  by  the 
pica  ;  as  if  common  of  pasture  at  all  times  of  the  year  be 
pleaded,  and  the  plaintifl'  new  assigns  that  the  defendant  enter- 
ed at  other  limes  ;(;.)  and  ilicrefore  the  defendant  cannot  plead 
to  the  new  assignment,  that  the  place  or  trespass,  &c.  men- 
tioned therein,  is  the  same  as  that  mentioned  in  the  plea,  and 
if  in  truth  tiiey  are  the  same,  the  defendant  should  plead  not 
guilty,  and  take  advantage  of  it  in  evidence,  as  the  plaintiff 
would  be  estopped  from  proving  any  trespass  in  the  same  place, 
&c.(t)  and  for  the  same  reason  the  defendant  cannot  justify  at 


\o)  See  tlio   form,  2  Co.  C.  ii.  IS.  h.         (/)  Hue.  Alu-.  Ti-espas.s,  I.  4.2. 
liast.  Knt.  nos.     Tost,   vol,   2.  053  lo         («)     (iou'.ds.     191.      Moore,   54(K 

G5r.  &  U  Wentw.  Index,  CXX1^^  Cio.  Eliz.  .i'SO.  S.  C.  aud  see  the  cases 

{  ft)  Vvcem   ..j8.  in  nest  note. 

(</)    tionlus.    li)i.       :Moorc,    .^io.         (t)  Id.  iljid.  Yin.  Abr.  Trespass,  U^ 

(Jru.  Eliz.  r,WK  S.  C.  a.  4.  pi.  y,  10.     Bnc.  Abr.  Trespass,  I. 

(r)  See  tliclbirii,  post,  vol.  2.   P,rn.  4.2.    1  Saiiiid.  299.  e.  1 15.    Ci-o.  F^liz. 

AIji-.  tit.  Ftespjiss,  pi.  ;3.')9.  .35.').  493.  14  Heu.  VIII.  4.  pi.  3.  Bra. 

(.?)  Hro.  Abr.  tit.  Trespass,  pi.  ICS.  Trespass,  IfiS.     27   Hen.   YIII.  7.  pi. 

203.  j5'.).  21.     Bro.  Trespass,  S, 


TO  A  SPECIAL  PLEA.  614 

a  different  place,  and  traverse  the  place  mentioned  in  the  new  //.  Thebndtj. 

assitcnment  ;Uy)  and  when  the  plaintiff  traverses  the  t'lea,  as  ^thly.  New 
.  assignments, 

well  as  new  assigns,  the  defendant  cannot,  as  to  tlie  nialter  an- 
swered in  the  plea,  plead  new  matter,  but  must  stand  by  his 
plea.(x) 

To  the  pica  or  pleas  to  the  new  assignment,  the  ])li;intiff  Replication  to 

.  . ,,  pKa  lo  a  new 

should  retiiy  precisely  as  to  pleas  to  a  declarutiun,  and  li  tl.e   assignment. 

plea  be  such  as  would  re'iuire  a  new  assiijnnicnt  if  pleaded,  to 

a  decluration,   the   phiiniiff  should  again   new  assign  to  such 

plea.(v) 

The  conduHion  of  replications  in    p'.u'ticular   *instances   has         *    615 

already  been  poinied  out  ;C~3  audit  may  here  sutVice  to  observe   lU.'Vhe  cou- 

.       .  .  elusion, 

that  when  a  replicution  denies  the  whole  of  the  defendant's  plea, 

containinj^  matter  of  fitct,  it  should  conclude  lo  the  country 
thus  :  "  and  this  he  tlie  s^iid  plaintiff  prays  may  l)c  inquired  of 
*'  by  the  country,"  Sec. (a)  and  it  is  an  establi-shed  rule  applicable 
to  every  part  of  pleading,  subsequent  to  the  declaration,  that 
when  there  is  an  uRirmalive  on  one  side,  and  a  negative  on  the 
other,  or  vice,  vena,  the  conclusion  should  be  to  the  country, 
although  the  affirmative  and  negative  be  not  in  expiess  words, 
but  only  tantamount  thereto  ;(6)  and  it  may  also  be  laid  clown  as  a 
safe  rule  that  where  a  defendant  cannot  take  any  new  or  other  is- 
sue in  his  rejoinder,  than  the  matter  he  had  before  pleaded,  w  ith- 
out  a  departure  from  his  plea,  or  where  the  issue  on  the  rejoinder 
would  be  the  same  in  substance  as  on  the  plea,  the  plaintiff 
should  conclude  to  the  countiy  :(f)  and  it  is  not  material  in 
this  case  whether  the  replication  contain  a  formal  traverse,  for 
where  a  traverse  comprises  the  ivhole  matter  of  the  plea,  the 
replication  may  stiil  conclude  to  the  country .(f/)  This  conclu- 
sion is  also  proper  where  a  particidar  fact  is  selected  and  de- 


'    (w)   Bro.   Abr.  Ti-espass,  pi.  IdS.  sioa  in  •general,  Com.   Die;.  IMcmiIit, 

Vin.  Abr.   Trespass,    U.   a.  4.  pi.    'j,  F.  5. 

10.  15.  («)  1  Saiiiul.  lO.S.     1  Hiivr.  .116.     2 

(r)   Ci-o.    Eliz.     812.      Rae.    Abr.  Burr.  102-2.     l)ou<j.  94.  4'2S.     '2T.  li. 

Trespass,  1.  4.  2.  442,  44.3. 

(t/)  1  Saund.  299.  c.     Sf!e  tlic  pre-  {b)  1  Saund.  10.1.    2  New  Kcp.  .IC:. 

cedents   referred   to  iti  9  Wentw.  In-  (c")  1  Samul.  \M.  b.      .Vnd  see  the 

dcx.     2ro.  6.  k  post,  vol.  2.  C7.i.  reason,  2  Saund.  ISO,  100. 

(r)  Ante,  and  see  as  to  the  concln-  ( d)  1  Saik.  4.     1   S^uud.  in.3.  ».  I,. 


C15  FORMS  AND  PARTS  OF  REPLICATIONS,  &c. 

lU    rite  con-  nied,  vvithoal  any  inducement  or  fonrniL  traverse  ;(e)  but  the 
M.   7-1^  pL'intifi  lb  stiii  *ut  iibe.riy,  where  he  only  denies  one  of  sever^ 

ftcis.  :.nd  not  tJie  whole  substance  of  the  plea,  to  commence 
his  replication  with  an  inducement,  and  formally  to  traverse 
the  particular  fact,  and  conclude  with  a  veriiication,  though 
ti.is,  as  already  observed,  tends  to  unnecessary  prolixity,  delay 
and  expense  ;(/)  and  when  this  form  is  adopted,  the  conclu- 
sion should  be  with  an  averment  and  prayer  of  damages  or  of 
the  debt  and  damages.(  ,(,'•)  It  is  a  general  rule  that  when  new 
matter  is  alleged  in  the  replication,  it  should  conclude  with  an 
averment,  in  order  to  give  the  defendant  an  op))ortunity  of  an- 
swering it;(A)  end  an  approi)nate /27Y/yr;-  of  Juds^^metit  for  debt 
and  damages  only,  according  to  the  form  of  action,  and  the 
subject  matter  of  dispute,  and  not  merely  wide  fietit  jitdic'nan 
if  he  actione  firecludi  debet.  But  when  the  defendant  would 
noi  be  at  libeity  to  traverse  or  answer  the  new  matter  without 
a  ilepanure,  the  replication  may,  notwithstanding  the  introduc- 
tion oi'  new  matter,  conclude  to  the  country  ;  as  if  to  debt  on  an 
award,  the  defendant  plead  mil  agurd^  and  the  plaintiff  reply 
an  award,  and  set  forth  a  breach,  it  is  said  that  he  may  con- 
clude to  the  country. 0")  though  a  conclusion  with  a  verification 
*  fil7  is  most  usual. (A-)  Where  matter  of  estoppel  *is  replied,  the 
plaintiff  should  rely  on  it,  or  he  will  lose  the  benefit  of  it.(/) 
and  \k  is  usual  to  conclude  the  replication  in  that  case  with  a 
verification  and  prayer  of  judgment,  if  the  defendant  ought 
to  be  admitted  or  received  against  his  ow-n  acknowledgment, 
&CC.  to  plead  his  plea  ;(?«)  but  in  this,  and  indeed  all  other  re- 
plications, it  is  sufficient  alter  the  proper  verification  to  pray 
judgment  generally,  without  pointing  out  the  appropriate  judg- 
ment ;(?i)  and  where   the  word  "  certify"  -was  by  mistake  in* 


(e)2T.  R.  349,     1  Salk.  4.     1  Ld.  II.  570.     4  Mod.  37G.  As  to  conclu- 

Ravm.  Gil.     1  Saund.  103.  a.  b.  Say-  sioa   of  matter    when    in     negative 

er,  234.  WiUes,  0. 

(/)  Id.  ibid.     2  T.  R.  442,  443.     1  {i)  1  Saund.  327.  n.  1.  cites  3  Lev. 

Burr.  320,  S'-il.     2  Str.i.  871.    2  Wils.  105. 

113.     Doug.  428.  {k)  Post,  vol.  2.  6iy. 

(^•)  Id.  ibid.     S.nyer,  234.  1  Salk.  4.  (/)  1  Saund.  325.  n.  4.     1  Co.  52.  a- 

1  Burr.  31  y.     2  T.  R.  442,  443.  {m)  Post,  vol.  2.  502.  590.     Wiiles, 

(/))  1  ^aund.  103.  n.  1.  327.  n.  1.     2  11.  13. 

Saund.  6.5.  g.     Carlli.   337.  .  1   Lutiv.  {■»)  ^^'illes,  13.     1  Saund.  97.  a.     4 

iOl.     2  WUs.   66.     Doug.  60.    2  T.  East,  502.  509. 


THE  QUALITIES  OF  A  REPLICATION,  &c.  617 

serted  instead  of  "  verify"  the  court  appeared  to  consider  the  ///.  The  can- 
replication  sufficient,(ci)  and  unless  assigned  specially  as  cause 
«f  demurrer,  a  defect  in  the  conclusiun  of  a  replication  is  aid- 
cd.(/^) 


///.  THE  qUALITIES  OF  A  REPLICATIO.X. 

The  qualities  of  a  replication,  in  a  great  measure  resemble 
those  of  a  plea,(«)  and  are  :  Jirst^  that  it  must  answer  so  much 
of  the  plea  as  it  professes  to  answer,  and  that  if  bad  in  part  it 
is  bad  for  the  whole.  Secondly^  that  it  must  be  conformable 
to,  and  not  depart  from  the  count.  Thirdly,  that  like  a  plea, 
it  should  be  certain,  direct  and  positive,  and  not  argunienlativc, 
and  also  that  it  be  triable  ;  and  J'ouri/ily,  that  it  must  be  single. 

*lst.  We  have  already  seen  the  consequences  of  a  disconti-         *'    618 

nuance  where  the  defendant  has  omitted  to  plead  to  a  part  of  ^-  •^^''■''    f"- 

'  '  sii'er  the  plea. 

the  plaintiff's  demand,  or  has  professedly  pleaded  to  more  or 
less  than  the  plaintiff  proceeds  for,  or  where  one  of  the  de- 
fendants has  not  pleaded  at  all,  and  the  conduct  which  the 
plaintiff  should  then  adopt,  has  been  pointed  out.(i)  A  repli- 
cation also  should  answer  so  much  of  the  plea  which  it  profes- 
ses to  answer,  or  it  will  be  a  discontinuance  ;(c)  and  it  is  a  rule 
that  an  entire  replication  bad  in  part  is  bad  for  the  w  hole  ;  as  if 
to  a  plea  of  the  statute  of  limitations  to  two  counts  of  a  decla- 
ration, the  plaintiff  should  reply  that  the  accounts  were  between 
the  plaintiff  and  defendant  as  merchants,  if  this  plea  should  be 
bad  as  to  one  of  the  counts,  it  is  bad  also  as  to  the  other  ;(r/) 
but  this  rule  does  not  apply  where  the  matter  objected  to  is 
merely  surplusage  ;(<?)  and  where  a  defendant,  executor  or  ad- 
ministrator, has  pleaded  several  judgments  outstanding,  it 
would  be  a  sufficient  answer  to  the  whole  plea  to  deny  the  va- 
lidity of  one  of  the  judgments. (/) 


(o)  Willcs,  6,  7.  (r)  Com.  I>ig.  Ple;idor,  F.  4.  W.  2. 

(/))  16  k  17  Car.  II.  c.  S.     4  Ann.  1  Saund.  338. 
c.  16.  s.  1.     1  Saiind.  09.  n.  '2.  {d)  Com.  Di.^.   Pleader,   F.  25.     ;3 

(<()  Ante,  506  to  521.  T.  i:.  .i7Ci.   1  Satind.  2S.  n.  3.  2  Saiiinl 

(6)  Ante,  509,  510.  and  see  Com.  12r. 
Di-   Pleader,  F.  4.     W.  1,2,  3.     I  IJ.         (t-)  !<I    ibid.    3  T.  K.  374.     .577.    1 

ic  P.  411.  Kast,  219. 

(./"I  I  Samid.  .1.17.  lvn.2. 


•618  THE  QUALITIES  OF  A  RF.PLICATION,  &c, 

//.  ^lust  not       2dly.  It  is  also  a  settled  rule  that  the  rejilicalion  must  not  (/<■• 

depart     from    .      ^  ,•  ,         .,  •         •       i        i      ,         •       • 

dfclamtion       /'^'"'^  liom  the  allcgcitions  \\\  the  {Icclarution  m  any  material  niat- 

'*^'^-  ter,  a   rule    which   equally   afl'ecls   rejoinders   and    subsequent 

pleadings.  A  departure  in  pleading  is  said  to  he,  when  a  party 
quits  or  departs  from  the  case   or  defence  which   he   has  first 

^  619  made,  and  has  recourse  *to  another;  it  is  when  his  replication 
or  rejoinder  contains  nictier  not  pursuant  to  the  declaration  or 
plea,  and  which  does  not  support  and  fortify  it.(^)  A  depar- 
ture in  pleading  is  not  allowed,  because  the  record  would  by 
such  means  be  spun  into  endless  prolixity,  for  if  it  w  ere  per» 
milled,  he  who  has  departed  from  and  relinquished  his  first 
pica,  might  in  every  di fie  rent  stage  of  the  cause  resort  to  a 
second,  third,  or  even  further  defence,  and  thereljy  pleading 
•would  become  infinite  ;(/t)  and  if  parties  were  permitted  to 
wander  from  fact  to  fact,  forsaking  one  to  set  up  another,  no 
issue  could  be  joined,  nor  could  there  be  any  termination  of  the 
suit.(?)  A  departure  may  be  either  in  the  substance  of  the 
action  or  defence,  or  the  law  on  which  it  is  founded  ;{])  as  if  a 
declaration  be  founded  on  the  common  law,  and  the  replication 
attempt  to  maintain  it  by  a  spcci.d  custom,  or  act  of  parlia- 
ment ;(A-)  so  if  in  replevin  fqr  taking  the  plaintiff's  goods  and 
chattels,  to  wit,  a  lime-kiln,  the  defendant  avows  under  a  dis- 
tress for  rent,  and  the  plaintiff  pleads  in  bar  that  the  lime-kiln 
>vas  affixed  to  the  freehold  :  this  is  a  departure,  the  declara- 
tion being  for  goods  and  chattels,  and  the  plea  in  bar  stating 
the  property  to  be  part  of  the  freehold. (/)  So  where  in  as- 
sian/isit  by  an  executor  on  several  promises,  which  were  all  laid 
to  have  been  made  to  the  testator,  to  which  the  defendant  plead- 

^  620  ed  the  statute  of  limitations,  and  the  plaintiff  replied  a  *subse- 
quent  promise  to  himself,  the  replication  was  held  to  be  a  de- 
parture, and  therefore  bad  ;(/)  a  variety  of  other  instances  are 
collected  in  the  Digests. (?«)     But  a  departure  more  frequently 


is)  2  Sanml.  S4.  a.  n.  I.     Co.  Lit.  (/}  4  T.  R.  504.     2  Samul.  84.  b. 

304.  a.    2Wi!s  D8.  (/)   2  Saund.  63.  g.  81.  c.     "Willes, 

(/i)2Sausul.  84.  a.  n.  1.  2'.).     1  Sulk.  28.     6  Mod.  309.  2  bti-a. 

(?)  Suniniary  on  PleadiiiE?,  92.  8<J0.     3  East,  409. 

(./)  Co.  Lit.  304.  a.    2  Saiind.  84.  a.  (m)  Com.  Di^.  Pleader,  F.  6,  7,  8, 

{h)  Co.   Lit.  .304.  a.    Com.   lYi'^.  9.  ^c 
Picader,  F.  7,  8. 


THE  QUALITIES  OF  A  REPLICATION.  620 

occurs  in  a  rejoinder  ;(")  thus,  if  in  an  action  of  debt  on  an  arbi-  77.  ,^^tlit  not 
iraiion  bond,  tlic  defendant  plead  that  no  award  was  made,  and  [leclavutlon^ 
the  plaintiff  in  his  replication,  sets  out  an  award,  and  assigns  '^'^' 
a  breach,  the  deiendant  cannot  rejoin  that  an  award  was  not 
tendered,  or  that  it  was  void  on  account  of  some  extrinsic  fact,(o) 
or  that  the  defendant  huth  performed  or  been  ready  to  perform 
it ;(/.')  but  the  award  being  set  out  by  the  pl.iiiitiff  in  his  re- 
plication, and  the  defect  appearing  on  the  face  of  it,  the  de* 
fendant  may  demur,  though  he  could  not  avail  hiu>self  of  any- 
extrinsic  facts. (7)  So  in  an  action  of  debt  on  bond,  condition- 
ed for  the  p.tvment  of  an  annuity,  if  the  defendant  plead  no 
such  memorial  as  the  statute  requires,  and  the  plainliir  replies 
that  there  was  a  meniorial  which  contained  the  names  of  the 
parties,  &c.  and  the  consideration  for  wliich  the  annuity  was 
granted,  and  the  defendant  rejoins  that  the  consideration  is  un- 
truly alleged  in  the  memorial  to  have  been  paid  to  both  .obli- 
goi's,  for  that  one  of  them  did  not  I'eceive  any  part  of  it ;  this 
rejoinder,  stating  a  new  fact,  is  bad,  as  being  a  departure  from 
the  plea.(r)     So  in  an  action  of  debt  on  bond,  conditioned  *for  ^   521 

performance  of  covenants,  if  the  defendant  plead  performance, 
and  the  plaintiff  reply  and  assign  a  breach,  the  defendant  can- 
not rejoin  any  matter  in  excuse  of  performance. (r)  So,  Vvhere 
in  trespass  for  impounding  the  plaintiff's  mare,  the  defendant 
pleaded  that  she  was  doing  damage  to  the  king  in  his  forest  of 
ll'altham,  and  the  plaintiff  replied  a  right  of  common  in  the 
forest,  and  the  defendant  rejoined  that  the  mare  was  mangy, 
and  doing  damage,  and  that,  therefore,  he  took  and  impound- 
ed her  :  this  was  held  to  be  a  departure  from  the  plea,  be- 
cause the  plea  was,  that  the  mare  was  doing  ^  firivate  trespass 
to  the  king  in  his  forest,  and  that,  thcicf'jre,  the  defendant 
impounded  her,  but  the  rejoinder  is  that  the  marc  was  mangy, 
whiph  is  a  common  nuisance.(s)     And  where    in   trespass  for 


(7/)  See  i<1.  ibid,   for   the   inslanees  (9)  t  Snlk.  72.     1   S.iund.  103.  n.  I. 

of  a  (Icfoclive  rej(nii(Jcr,  and  3  SaTiiid.  2  Hamid.  C'2.  b.  n.  5. 

85,  84.  n.   1.  1S8.     1    Saiiiid.  117.  11.  3.  (r')  i  T.  11.  5S.5.     -2  H.  Hi.  2fiO. 

3-ifi.  c.  (r)  '2  Samid.  8.3.  c.     Co.  Lit.  304.  a: 

(o)    1    Lev.   85.   127.133.     I  Wils.  Com.  Di;?.  I'kader,  F.  6.  &c. 

122.     4  1".  R.  583.  (*}  2  Wils.  96.     SSauud.  Si.  b 

ili)  I  Sill,  la 


621  THE  QUALITIES  OF  A  REPLICATION,  &c. 

//.  .llnsf  ml  impounding;  the  plaintiff's  ox,  the  defendant  justified  the  taking 

ilelifvt      fvnm  '  •    ■  ■  rr-  ■         "     • 

(leclanuinn,      cUanage-fca.sant^  and    the  pluiniiff  entitled  himself  to  common 
*^'"'  of  pasture   for  one  ox  in  the  place  in  which,  See.  and  the  de- 

fendant rejoined  that  the  plaintiff  had  surcharged  the  com- 
mon ^vith  that  ox,  it  was  adjudged  that  the  rejoinder  was  a  de- 
parture from  the  pica,  because  there  is  a  great  difference  be- 
tween damagc-ffumnt  and  a  surcharge  of  common,  and  the 
surcharge  should  have  been  pleaded  at  first.(^) 

But  matter  which  maintains  and  fortifies  the  declaration  or 
*  622  plea,  is  not  a  departure, (;i)  as  *in  trespass  for  taking  a  horse,  if 
the  defendant  justify  for  a  distress  damage -feasant^  the  plaintiff 
may  reply  that  the  defendant  afterwards  used  the  horse,  which 
shews  that  he  was  a  trespasser,  ab  initio.(v)  So  if  to  debt  on 
bond  to  uidemnifythe  plaintiff  from  tonnage  due  to  A^  the  de- 
fendant plead  71071  damnificatus^  and  the  plaintiff  replies  that  A 
distrained  for  the  said  tonnage,  and  the  defendant  rejoins  that 
nothing  was  due  to  A  for  tonnage,  this  is  not  a  departure  ;(w) 
and  if  the  plaintiff  vary  in  his  replication  from  his  count,  or 
the  defendant  in  his  rejoinder  from  his  plea,  in  time,  place,  or 
other  matter,  when  immaterial,  it  is  not  a  departure  ;  as  if  in 
a  declaration,  a  promise  be  stated  to  have  been  made  twenty 
years  ago,  and  when  the  defendant  pleads  the  statute  of  limi- 
tations, the  plaintiff  replies  that  the  defendant  did  undertake 
within  six  years  ;  this  is  not  a  departure,  because  in  this  case 
the  statement  of  the  time  in  the  declaration  was  immaterial. (jr) 
So  if  in  trespass  for  an  assault  at  //,  if  the  defendant  pleads 
onolliter  ma77us  imfiosuit  to  remove  the  plaintiff  from  his  close 
at  A^  and  the  plaintiff  replies  that  he  had  a  way  over  that  close, 
it  is  not  a  departure  ;  for  in  transitory  actions,  the  venue  in  th& 
declaration  is  imiTiaterial-C^)  In  the  case  of  a  deed  or  a  pro- 
missory note,  though  there  are  dicta  to  the  contrary  ;(r)  and 
tliough  the  plaintiff  cannot  vary  from  an  express  statement  of 


(0  1  Salk.  221.      Willes,    C38.      2         (.r)  Com.  Dig.  Pleader,  F.  11. 
Swmd.  84.  c.  ( J/)  III.  ibid.      1  Salk.  ii'22.      1  Ld. 

(«)  Com.  Dig.  Pleader,  F.  11,  Raym.  1'20. 

(tj)  Id.  ibid.     1  Salk.  221.     3  Wils.         \z)  Seethe  cases  cited   in  Tidd's 

20.     Cro.  Jac.  148.  Vim.  ith  edit.  630,  631. 

(-y)  Fortes.  341.    Com.  Dig.  Plead- 
trr,  F.  11. 


THE  QUALITIES  OF  A  REPLICATION,  &c.  *623 

the  date  *of  a  written  instrument,  yet  lie  may  reply,  or  shew  II.  Must  not 

1         vrr  .1        depart    from 

in  evidence  thut  it  was  really  made  on  a  day  ditteren;  to  tne  aedurukon, 

date  ;(rt)  and  where  a  bill  or  note  is  stated  in  the  declaration  to  ^'^• 
have  been  made  on  a  day  which  appears  to  have  been  above 
six  years  before  the  commencement  of  the  suit,  a  subsequent 
promise  or  acknowledgment  within  six  years,  be  shewn  in 
cvi.i.  nee  under  a  replication  to  the  plea  of  the  statute  of  limi- 
tations.(6)  But  where  time  or  place,  or  any  other  circum- 
stance is  material,  the  plaintiff"  cannot,  as  v/e  have  seen,  vary 
from  his  previous  statement  of  it  ;(f)  though  where  matter  of 
defence  has  arisen  pending  the  suit,  it  may  be  pleaded  fiuis 
darreiii  continuance^  relicta  -verijicatione  of  the  former  plea  ; 
as  if  in  an  action  against  a  person  as  executor,  he  plead  a  re- 
tainer for  a  debt  due  to  himself,  and  the  phdntiff"  reply  that  he 
was  only  executor  de  son  tort,  the  dcfcndcint  may,  by  way  of 
plea  /luiis  darreiji  continuance,  rejoin  that  he  has  since  obtained 
letters  of  administration. (J) 

The  only  mode  of  taking  advantage  of  a  departure  is  by  de- 
murrer, which  may  be  either  general  or  special  ;(«■)  and  if  the 
defendant  or  the  plaintiff",  instead  of  demurring,  take  issue 
upon  the  replication  or  the  rejoinder,  containing  a  departure, 
and  it  be  found  against  him,  the  court  will  not  arrest  the  judg- 
ment.C/)  *   624 

*3dly.  Another  quality  essential  to  a  replication  is  certainty.^  ui.  The  car- 
and  it  is  said  that  more  is  requisite  in  a  replication  than  a  de-  rgl\,f'if^'" 
claration,  though  certainty  to  a  common  intent  is  in  general 
sufficient. (^•)  Where  the  replication  is  only  to  a.  part  of  the 
plea,  the  part  alluded  to  should  be  ascertained  with  certainty, 
as  if  in  assumpsit  on  several  promises,  the  defendant  has  plead- 
ed infancy,  and  the  plaintiff"  replies  that  part  of  the  goods  were 
for  necessary  food,  and  part  for  clothes,  it  is  said  to  be  insuffi- 
cient if  he  do  not  shev/  what  part  was  for  the  one  and  what  for 


(a)  4  East,  477.  (r)    2  Saund.  84.   d.      2  Wils.  96. 

(/j)  The   case  iii  10  Mod.  312.  is    Qiixre  if  it  ought   not   to   be  a  spe- 
fiot  hiw,  and   what  vas  said  in  Stra.     cial  demurrer.  Com.  Dig.  Pleader,  F. 

22.   k  806.  as  to  a  promissory   note,     10.     I  baund.  117. 

was  extrajudicial.  (/)    Sir  T.  Uaym.   86.      2  Sauud. 

(c)  Ante,  622.  84.  d. 

(</)  2  Stra.  IIOO;  (^)  Com.  Dig.  Pleader,  F.  17. 

Vol.  I.  [  57  ] 


624  'f HE  QUALITIES  OF  A  REPLICATION,  See. 

///.  Tlie  cer-  the   Other  {h)     In   general,  also,  when    material  to  the  action, 
reou^site  '^       time,  place,  and  other  circumstances  must  be  stated  with   the 
same    certainty  and  precision    as  in  the    previous  pleadings  ; 
but  where   time  or   place   is  immaterial,  ii  should  seem  with 
analoj^y  to  pleas  in   bar,  that  as   the  time  and  place  meniioied 
in  the  declaration,  must,  when    immaterial,  be  adhered  lO,  no 
repetition   of  either  would  be  necessary  ;(?)   we  have  seen  tliat 
where  particularity  in  pleading  would  tend  to  great  prolixity,  a 
general   allegation  is  allowed,  on  which   principle  it  is  settled 
that  in  debt  on  a  bond  to  account  for  all  monies,  Sec.  which  tlie 
defendant  or  a   third  person  should  receive  in  the  course  of  a 
certain  employment,  it  is  sufficient  to  assign  the  breach  gene- 
rally, that  divers  sums  of  monejrwere    received   from  divers 
*    625         persons.  See.    without    naming    from  whom    in    particular.(y) 
JV.  Ml/St  be         *4thly.  The  replication  must  not  be  dou6Jc,  or  in  other  words 
•^  *"  contain  two  answers   to  the   same  plea  •,{fc)  a  reason  has  been 

assigned  that  the  plaintiff  ought  not  to  perplex  the  court  with 
two  matters,  to  attempt  to  inveigle  their  judgment,  and  that  if 
two  issues  were  permitted  to  be  joined  upon  two  several  tra- 
verses on  the  plaintiff's  replication,  and  one  should  be  found 
for  the  phdnliff,  and  the  oilev  for  the  defendant,  the  court 
would  not  know  for  whom  to  give  judgment,  whether  for  the 
plainlifV  or  the  defendan  ;(/)  and  the  court  will  not  give  leave 
to  reply  double,  under  the  statute  4  yi?in.  c.  16.C»0  though 
vuider  that  statute  the  plaintiff  in  re/tlevm  may,  with  leave  of 
the  court,  plead  several  pleas  in  bar  to  an  avowry  or  cogni- 
sance.(/<)  But  a  replication  may  frequently  put  in  issue  several 
i\icts,  where  they  amount  to  only  one  connected  proposition  :(o) 
and  as  we  have  already  seen,  a  replication  may  contain  several 
distinct  answers  to  different  parts  of  a  plea  divisible  in  its  na- 
ture ;(/0  as  where  infancy  has  been  pleaded  to  a  declaration 
consisting  of  several  counts,  the  plaintiff  may  reply  as  to  part 
of  the  demand,  that  it  was  for  necessaries,  to  other  part  that 


(/()   Lutw.  2il.      Com.  Dig.  Plead-  (,')  '2  Saunil.  49,   50. 

er,  F.  4.     Ante,  5*3,  574.  (m)  Fortes.  335.     Barnes,  63. 

(0  See  -2  H.  Bl.  IGl.    1  Saund  8.  a.  («)  2  B.  &  P.  368.  376. 

Aii:e,  .tI7,  518.  (o)    1  Burr.  31".      Ante,    577.   Jc 

(./)  8  T.  R.  463.     I  B.  k  P.  640.  588.     Rep.  temp.  Hardw.  289. 

(V)  Com.   D\o;.  Pleader,  F.   16.—  (/>)  Ante,  5i9.  551. 
Rrp.  temp.  Uardw.  28". 


THE  QUALITIES  OF  A  REPLICATION,  6cc.  625 

the  defendant  was  of  full  age  at  the  time  the  contract  was  made,  IV.  Must  be 
and  to  other  part  that  he  confirmed  it  after  he  came  of  age.^y) 
So  if  an  executor  or  administrator  plead   several  judgments 
outstanding  and  no    assets    ultra,  the  plaintiff  may  reply  as  to 
one    of  the  judgments   nul  del  record,  *and  to  another  that  it  '^   626 

was  obtained  and  kept  on  foot  by  fraud. (r)  In  an  action  of 
debt  on  bond,  conditioned  for  performance  of  covenants,  the 
pl-.intifl  may,  and  indeed  ought,  by  the  statute  8  and 9  H'?>i.  ill. 
c.  II.  s.  8,  to  assign  as  many  breaches  in  his  replication,  as 
he  proceeds  for.U)  And  to  a  plea  of  set-off,  consisting  of  se- 
veral demands  upon  judgment  or  recognisance,  and  simple 
contract,  the  plaintiff  in  his  replication  should  give  several  an- 
swers, viz.  as  to  the  judgment  or  recognisance,  Jiul  del  record^ 
and  as  to  the  simple  contract,  that  he  was  not  indebted  ;(/)  or 
he  may  reply  as  to  a  part,  the  statute  of  limitations  ;{ii)  and 
duplicity  in  a  replication  is  aided,  unless  the  defendant  demur 
specially,  pointing  out  the  particular  defect. (z*) 


(7)  Id.  ibid.  (m)  Post,  vol.  2.  605. 

(r)  1  Saund.  3.37.  b.  2.    ILd.R.iym.  (v)    27  Eliz.  c.  5.      4  Ann.    e.  Ifi. 

263.     1  Salk.  298.  s.   1.     1  Saund.  337.  h.   n.   3.     Doct. 

(s)  Post,  vol.  2.  623.  Plac.  147. 

(f)    1  East,  3G9.      See   the  prece- 
dent, post,  vol.  2.  604. 


627 


CHAPTER  IX. 

OF  KEJOINDERS  AND  THE  SUBSEQUENT  PLEADINGS  ;  ISStTES, 
REPLEADERS,  AND  PLEAS  PUIS  DARREIN  CONTINUANCE; 
AND    OF    DEMURRERS   AND    JOINDERS    IN    DEMURRER. 

Of  rejoinders.  /\  REJOINDER  is  the  defendant's  raiswer  to  the  replica- 
tion,(«)  and  is  governed  by  the  same  rules  as  those  which  af- 
fect pleas  ;(/;)  with  this  additional  quality,  that  it  must  support, 
and  not  depart,  from  the  plea  ;(c)  it  must  also  be  single,  and 
the  court  cannot  give  leave  to  the  defendant  to  rejoin  several 
matters,  for  the  statute  oi  Ann.  docs  not  extend  to  rejoinders  \{d) 
hence  it  may  suflice  to  refer  to  the  preceding  pages,  and  to  the 
forms  which  are  given  in  the  second  volume. 

Form  and  re-       Whcu  a  replication,  or  a  plea  in  bar  in  replevin,  concludes 

tjntsiten  of.  X  1  i 

to  the  coiintrjj,  the  defendant  can  only  demur  or  add  the  com- 
mon shmiiter,  wliich  is,  "  And  the  said  defendant  doth  the 
"  like :"  and  v.here  there  are  several  replications,  particularly 
when  some  conclude  to  the  country,  and  others  with  a  verifi- 
cation, it  may  be,  "  And  the  said  defendant  as  to  the  said  re- 
"  plications  of  the  said  pUunliff,  to  the  said  second  and  third 
<'  pleas  of  him  the  saitl  defendant,  and  vvhich  the  said  plaintiff 
*  628  «'  *hath  prayed  may  he  inquired  of  by  the  country,  doth  the 
"  like. "(e)  But  the  plaintift'  is  at  liberty  to  add  the  si?niHlc7-y 
it  being  a  rule  that  in  all  special  pleadings,  where  the  plaintiff 
takes  issue  upon  the   defendant's   pleading,  or  traverses  the 


(fl)  Com.  Dijr.  Pleader,  H.  189,100.     Com.    Dig.   Pleader,  F.  6. 

(6)  Ante,  506  to  52o.   Co.  Lit.  303.  to  F.  11. 
b.  (rf)  Sti-u.  90?. 

{(■)  Ante,  618  to  623.  as  to  tlic  points         (e)  See  the  forms,  post,  vol.  2.  658. 

vclatiiig  to  a  departure,  and  ti  Samid.  and  id.  note  («')• 


OF  REJOINDERS.  628 

same,  or  demurs,  so  that  the  defendant  is  not  at  liberty  to  al-  -^«'''«  and  re- 

■     .    .        qumtes  of. 
lege  any  new  matter,  the  plaintifF  may  add  the  ■■umliter  or  jom- 

der  in  dcnmrrer,  and  make  up  the  paper  book  without  giving 
a  rule  to  rejoin  ;(/)  but  otherwise  a  rule  must  be  i^iven,  vmless 
the  defendant  be  bound  by  a  judge's  order  to  rejoin  gratis,  and 
in  the  latter  case  llie  plaintiff  ought  to  add  the  shniliicr^  and  not 
to  give  a  rule  to  rejoin  ;(^)  and  where  the  plaintiff  adds  the 
similiter  the  defendant  may  strike  it  out,  and  demur  to  the  re-  . 
plication,  which  is  the  usual  course  when  the  defendant  has  no  ■■ 
merits  and  wishes  to  obtain  time. (A)  The  consenuences  of  a 
defect  in  or  omission  of  a  dmillter^  have  already  been  consi- 
dered, i) 

When  the  replication  concludes  with  a  verijicationy  the  re- 
joinder usually  denies  it,  and  concludes  to  the  country,  "  and 
"  of  this  he  the  said  defendant  puts  himself  upon  the  coun- 
"  try,"  Sec.  But  when  the  rejoinder  introduces  any  new  mat- 
ter, it  must,  as  in  the  case  of  a  plea  or  replication,  conclude 
with  a  verification,  in  order  that  the  plaintiff  may  have  an  op- 
portunity *of  answering  it.'^A:)  If  the  defendant  deny  several  *  629 
matters  alleged  in  the  replication,  the  rejoinder  may  conclude 
to  the  country,  without  putting  the  matters  in  issue  severally 
and  distinctly  ;  thus,  if  to  a  plea  of  infancy  the  plaintiff  has  re- 
plied that  a  part  of  the  goods  were  necessary  clothing,  and  the 
residue  necessary  food,  a  general  denial  in  the  rejoinder,  con- 
cluding to  the  country,  will  suffice.(/) 

Surrejoinders^  Rebutters,  and    Surrebutters,  seldom  occur  in   Stm-ejoin- 
pleading ;(?«)  it  may  suffice  to  observe  that  they  are  governed  '^'^»'^'^- 
by  the  same  rules  as  those  to  which  the  previous  pleading  of 
the  party  adopting  them  is  subject,  and  the  forms  which  most 
frequently  occur  in  practice  are  given  in  the  second  volume. ("0 


(/)  Rule  Trin.     1  Geo.  II.  note  a.  (j)  Ante,  570,  571. 

6  East,  586.    1  Sclwyn,  Prac.  c.  9.  s.  {k)  Ante,  537,  538.  615.     1  Saund. 

1.     1   H.  Bl.  254.     Imp.  Prac.  C.  P.  103.  n.  1.     See  the  fonns,  po&t,  vol.  2. 

358.  C5S.  606. 

( S)  3  B.  8:  P.  443.  (/)  Liitw.  iill.    Com.  D!-  Pleader, 

(/j)    Tidd's    Prac.    'ith  edit.    607.  '  H. 

Imp.   Prac.  C.    P.   358.     I    Selw} n,  (w)   See  these  head.-,  in  Com.  Di^. 

Prac.  0.  9.  s.  1.  Pleader,  I.  K.  L. 


629  OF  ISSUES. 

Of  hsiiea.  From  the  preceding  observations  on   the  different  parts  of 

plcLuUng,  particularly  those  relating  to  traverses,  we  may  col- 
lect what  points  niay  L)e  pui  in  is&iu  ;  us  however  the  parlies  re- 
spectively may  be  disinclined  to  demur,  or  otherwise  to  object 
to  their  opponent's  pleading,  it  may  be  advisable  to  consider  on 
what  issue  the  parlies  may  venture  to  go  on  to  trial,  so  as  to 
obtain  the  judgment  of  the  court,  and  to  avoid  the  necessity  of  a 
re/ilcadar^  on  account  of  the  issue  having  been  upon  immaterial 

*    630  matter. 

Sequmtes  of  J^■^^  ^^sue  is  defined  to  be  a  single,  certain,  and  *material 
point,  issuing  out  of  the  allegations  or  pleadhigs  of  the  plain- 
tiff and  defendant, (.'0  though  in  common  acceptation  it  signi- 
fies the  entry  of  the  pleadings.(o)  An  issue  should  in  general 
be  upon  an  aj/lrmative  and  a  negative^  and  not  upon  two  affir- 
matives ;  as  if  the  defendant  plead  that  ^  is  living,  and  the 
plaintiff  reply  that  he  is  dead,  it  is  more  formal,  though  not 
absolutely  necessary,  also  to  deny  that  he  is  living  ;(/ij  nor 
should  the  issue  be  on  two  negatives  :(</)  thus,  if  the  defend- 
ant plead  that  he  requested  the  plaintiff  to  deliver  an  abstract 
of  his  title,  but  that  the  plaintiff  did  not  when  so  requested  de- 
liver such  abstract,  but  neglected  and  refused  so  to  do  ;  the 
plaintiff  car.not  reply  that  he  did  not  neglect  and  refuse  to  de- 
liver such  abstract,  but  should  reply  either  denying  the  request, 
or  aftirmatively  that  he  did  deliver  the  abstract  ;(r)  but  it  is  not 
necessary  that  the  negative  and  affirmative  should  be  in  precise 
words  ;(6)  and  it  will  suffice  though  there  be  two  affirmatives, 
if  the  second  is  so  contrary  to  tiie  first  that  it  cannot  in  any  de- 
gree be  true  ;  as  if  duress  of  imprisonment  be  pleaded  to  a 
bond,  it  is  a  good  replication,  that  the  defendant  was  at  large  at 


(w)   Co.  Lit.    126.   a.      As   to    is-  tulit  hie  in  curia  qnandam  querelam 

.«(/es  in  General,  see  Com.  Disj.  Plead-  snam,'^  ami  the    continuances  are  in 

er,  R.     Bac.  .\br.  Pleas,  M.  the  preterperfect  tense,   as    "  vene- 

(o)  As  to  the  form  of  such  entry,  mint"    not    "  veniunt."     1  ]\Io<i.  SI. 

see  Tidd's  Prac.   4th   eilit.   655.   &c.  2  Saund.  393.  n.  1.     1    Stra    60S.  but 

As  to  the  language  of  this  entrj-,  it  is  see  1  T.  R.  320. 

said  that  the  acts  of  a  court  ought  to  (/j)  Com.  Dig.  Pleader,  R.  3. 

be  in  the /»resenf  tense,  as   "  prxcep-  Cy)  Id.  ibid.     8  T.    R.   280.     Bae- 

tnm  est,"  not  "  preceptum  fuit"  but  Abr.  Pleas,  I.  3. 

Ihe  acts  of  the  paity   may  he  in  the  (?•)  6  East,  557. 

pretcrperfect  tense,  as  "  ventt  et  pro-  (s)  Co.  Lit.  126. 


OF  ISSUES.  -^631 

*his  own  disposal,  and  exf  cutcd  the  bond  of  his  own  free  will,  Requisites  of 
anci  nf!l  for  lear  ol  iniprisoiunent.(0  An  issue  shouid  ulso  be 
upon  A  single  and  cer(ai?i  point  ;(,z')  but  it  is  not  necebSary  that 
suth  poiru  should  consist  of  a  single  fact,  and  thereiore  if  the 
defeu'  c;nt  in  trespass  justify  under  a  right  ot  common,  and  the 
rejj'ication  traverses  that  the  cattle  were  the  defendant's  own, 
anu  levant  and  couchant,  and  commonable  cattle,  it  is  not  multi- 
farious, for  all  these  circumst^inces  are  requisite  to  the  point  of 
defence. (")  Tl)e  issue  also  should  not  be  on  a  negative  preg- 
nant,(^y)  but  il  may  be  upon  a  disjunctive. (r) 

I'he  principal  quality  of  an  issue  is,  that  it  must  be  upon  a  ma- 
terial point  ;(i/)  an  zn/onHtz/ issue  is,  where  a  ?na;ma/ allegation 
is  traversed  in  an  im/iro/ier  or  inartijicial  viamier  ;{z)  and  this 
and  the  other  preceding  mistakes  are  aided  by  verdict  by  the 
3'2  Hen.  c.  30.(a)  but  a  verdict  does  not  help  an  i7nmaterial  is- 
sue ;(6)  which  is,  where  a  material  allegation  in  the  pleadings 
is  not  traversed,  but  an  issue  is  taken  on  some  other  point, 
which  though  found  by  verdict  will  not  determine  the  merits 
of  tlie  cause,  and  would  leave  the  court  at  a  loss  for  which  of 
the  parties  *to  give  judgment  ;(c)  as  where   in  debt  on  bond  *   632 

conditioned  for  the  payment  of  60/.  on  the  25th  of  June.,  the 
defendant  pleaded  payment  on  the  20th  of  June,  according  to 
the  form  and  effect  of  the  condition,  and  issue  Avas  joined,  and 
the  vc-rdict  found  th:it  he  did  not  pay  60/.  on  the  20th,  it  was 
held  tha>.  the  plaintiff  should  not  have  judgment,  for  the  issue 
was  out  of  the  matter  of  the  condition,  and  therefore  void,  and 
the  money  might  have  been  p.ad  on  the  25th,  though  it  was 
not  paid  on  the  20th,  so  that  it  did  not  appear  that  the  condition 
was  broken,  and  it  is  not  aided  by  the  above-mentioned  statute  ;(c/) 


(0  2Sti-a.  1177.     1  Wils.  6.  (z)    Cro.    Eliz.    227.      1    Lev.    3.'. 

{v)  Com.  Dig.  Pleader,  R.  4.  Carth.  371.     2  Mod.  137. 

\u)  I   BuiT.  316.  («)  Gilb.  C.  P.  147.     2  Saund.  319- 

(w)  See  the  instance  of  negative  n.  6. 

pve^naiits.  Com.   Dig.  Pleader,  R.  5,  (/»)  Id.   ibid.     2  Saund.  319.  n.  6.  a. 

6.     Rac.  Abr.  Pleas,  I.  6.     It  must  be  (c)  2  Saund.  319.  n.  6.     Gilb.  C.  P. 

objvcied  to  by  demurrer,  id.  ibid.     2  147.     1  Lev.  32.     See  the   instances, 

Sauitd.  319.  n.  6.  Com.  Di.  .  Pleader,  R.  18. 

(x)  Com.  Dig.  Pleader,  R.  7.  (</)  Cro.    Jac.  434.     Stra.   994.     2 

(v)  Com.  Dig.  Pleader,  K.  8.  Saund.  319.  b.  n.  6. 


632  '  OF  REPLEADERS. 

lieqnisitcH  of  SO  where  ill  an  action  of  usfnimjinit  against  an  administratrix^ 
t  •cm.  Qj^  promises  of  the  intestate,  she  pleaded  that  she  (insteaa  of 

the  intestate)  did  not  promise,  after  verdict  a  repleader  was 
awarded  :(e)  so  where  in  an  action  of  debt  aguinsi  a  lessee  for 
years,  the  defendant  pleaded  that  before  the  rent  became  due, 
he  assigned  the  term  to  a  third  person,  of  which  the  plaintiff 
had  notice,  and  issue  was  joined  on  the  notice,  which  being  al- 
together immaterial,  a  repleader  was  awarded.(y") 

Of  replead-  When  the  issue  is  immatciiuL  the  court  will  award  a  refikader 

crs. 

if  it  will  be  the  means  of  efiecting  substamial  justice  beiwccn 

the  parties,  but  not  otherwise  ■^{g)  the  following  rules  as  to  rc- 
*'   633  pleaders,  were  laid  down  in  the  case  of  *Htaidt  v.  Haydon  ;Ui) 

^firsty  that  at  common  law,  a  repleader  was  allowed  belore  uial, 
because  a  verdict  did  not  cure  an  immaterial  issue,  but  now  a 
repleader  ought  not  to  be  allowed  till  after  trial,  in  any  case 
where  the  fault  of  the  issue  might  be  helped  by  the  verdict, 
or  by  the  statute  of  jeofails  ;(X:)  secondly^  tnat  if  a  repleader  be 
denied,  where  it  should  be  granted,  or  vice  versa  it  is  error  ; 
thirdly.^  that  the  judgment  of  repleader  is  general,  (juod  partes 
relilacitent^  and  the  parlies  must  begin  again  at  the  first  tault 
which  occasioned  the  immaterial  issue  ;(/)  thus,  if  the  decla- 
ration be  insufficient,  and  the  bar  and  replication  are  also  bad, 
the  parties  must  begin  de  riovo,  but  if  the  bar  be  good,  and 
the  replication  ill,  at  the  replication  ^{111)  fourthly <,  no  costs  are 
allowed  on  either  side  ;(/2)  fifthly.,  that  a  repleader  cannot  be 
awarded,  after  a  default  at  nisi  fir ius  ;  to  which  may  be  added, 
that  in  general  a  repleader  cannot  be  awarded  after  a  demurrer 
or  writ  of  error,  without  the  consent  of  the  parlies,  but  only 
after  issue  joined  ;(o)  where,  however,  there  is  a  bad  bar,  and 


(c)  2  Vent.  9B.  Dig.  Pleader,  R.  18.      3  13.  &  P.  352. 

(f)  1  Lev.  32.  But  where  the  point  put   in  issue   is 

(^)  2  Sauiul.  319.  b.  n.  6.     2  Salk.  altogether  immaterial,  and  could  not 

.'ir'J.     S  Mod.  1.     2  Ld.    Raym.  922.  be  modified  by    tlie  verdict  because 

3  Salk.  121.  S.  C.     Cowp.  489.  collateral  to  the  merits,  it  would  be 

(A)  As  to  a  repleader  in    general,  otherwise. 

Com.  Dig.    Pleader,    R.    IS.        Bac.  (/)    1  Ld.  Raym.  169. 

Abr.  Pleas,  M.       Doct.  Plac.  tit.  Re-  (m)  3  Keb.  664. 

pleader.      Tidd's  Prac.  4th.  edit.  812.  («)    2  Ventr.   190.      6  T.  R.   131. 

See  the  forms  there  referred  to,  and  Barnes,  125.     2  B.  &  P.  376. 

2  Saund.  20.  (o)  3  Salk.  306. 

{k)  Bac.  Abr.  Pleas,    M.      Coni,. 


OF  PLEAS  PUIS  DARREIN  CONTINUANCE.  C33 

a  bad  replication,  it  is  said  that  a   repleader  m?iy  be  awarded  Wheri  Pieces- 
upon  a  demurrer  ;(/;)  a  repleader  *also  will  not  be  aw?.rded,  *"  ^^jc-^qa 
where  the  court  can  give  judgment  on  the  whole  record,(7) 
and  it  is  not  grantable  in  favour  of  the  person  who  made  the 
first  faultiin  pleading. rr) 

The  distinction  between  a  repleader  and  a  judgment  non  06- 
atante  veredicto  is  this  :  that  where  the  plea  is  good  in  form, 
though  not  in  fact ;  or  in  other  words,  if  it  contain  a  defective 
title,  or  ground  of  defence  by  which  it  is  apparent  to  the  court} 
upon  the  defendant's  own  shewing,  that  in  any  way  of  putting 
it,  he  can  have  no  merits,  and  the  issue  joined  thereon  be  found 
for  him  there,  as  the  awarding  of  a  repleader  could  not  mend 
the, case,  the  court,  for  the  sake  of  the  plaintiff,  will  at  once 
give  judgment  non  obstante  -veredicto  ;  but  where  the  defect  is 
not  so  much  in  the  title,  as  in  the  manner  of  stating  it,  and  the 
issue  joined  thereon  is  immaterial,  so  that  the  court  know  not 
for  whom  to  give  judgment,  whether  for  the  plaintiff  or  de- 
fendant, there  for  their  own  sake  they  will  award  a  repleader  ; 
a  judgment,  therefore,  non  obstante  veredicto^  is  always  upon 
the  merits^  and  never  granted  but  in  a  very  clear  case ;  a  re- 
pleader is  upon  the  form  anc'  "aanner  of  pleading. (s) 


When  matter  of  defence  has  arisen  after  the   commence-  Of  pleas  puis 

p    .  •      •  1         1       1     1      •     .  P  .         darrein     con- 

ment  ol  the   suit,  it   cannot  be  pleaded  *in  bar  of  the  action  tinuunce.{'^) 
generally •,  but  must,  when  it  has  arisen  before  plea  or  con-         *■   63d 
tinuance,  be  pleaded  as  to  the  furt/ier  maintenance  of  the  suit ;(;) 
and  when    it    has    arisen  after  issue  joined,  puis  darrein  conti- 
nuance.    The  instances  of  a  defendant  having  obtained  his  cer- 


(/))    Semb.      Cro.  Eliz,    518.      1  (f)  4  East,  507.       Ante,  531,532. 

Andr.lCZ.  sed  quaere.  Lutw.  U<  8.    Cora.  Dig.  Abatement, 

(7)  Willes,  532,  533.  I.  24. 

(r)  1  Ld.  Raym.  170.      Doug.  39C.  (f )   A3  to  these  pleas  in  general, 

747.     Tidd's  Prac.  4th  edit.  813.  sed  see  Rac.  Abr.  Pleas,  Q.    Com.   Dig. 

qn<Ere.  Abatement,  I.   24.   34.      Doct.  Plac. 

(.f)  Tidd's  Prac.  4th  edit.  813,  814.  297.     Bull.  N.  P.  309.    And  see  the 

Bac.  Abr.  Pleas,    ISt.       Com.  Dig.  precedent,  post,  vol.  2.  676,  677. 
Pleader,  R.  18. 

Vol.  I.  [  58  ] 


(iS5  OF  PLEAS  PUIS  DARREIN  CONTINUANCE. 

JVhen   neces-  tificatc  as  a  bankrupt  pending;  the  suit,  and  before  plea,(u)  and 
•         '        ot  an  executor  pleuchntj  judj^ments  obtained  aganist  him  alter 
the  issuing  of  the  writ,  are  exceptions. (x^) 

If  any  matter  of  defence  has  arisen  after  an  issue  in  fact,  or 
a  joinder  in  demurrer,(w)  it  may  be  pleaded  by  the  defendant ; 
as  that  the  phuntiff  has  given  him  a  release  ;  or  has  been  out- 
lawed or  excommunicated  iix)  or  that  there  has  been  an  award 
made  on  a  reference  after  issue  joined  ;(;/)  and  it  may  be  ad- 
visable so  to  plead  the  defendant's  bankruptcy,  when  he  has 
obtained  his  certificate,  after  issue  joined  ;(z)  and  where  the 
plaintiff  has  become  bankrupt  after  issue  joined,  and  the  as- 
signees dissent  to  liis  proceeding  in  the  suit,  it  may  be  advisa- 
ble to  plead  it.(«)     So  it  may  be  pleaded  in  abatement  that  a 

*  636  /erne  plaintiff  has  married  *since  the  last  continuance  ;(<!')  or  in 
an  action  by  an  administrator  that  the  plaintifl's  letters  of  ad- 
niinistration  have  been  revoked  ;(c)  so  a  defendant  sued  as 
executor  de  son  tort,  may  plead  that  he  has  obtained  letters  of 
administration,  so  as  to  support  a  previous  plea  of  retainer  in 
the  character  of  cxecutor.((/)  Pleas  of  this  kind  are  either  in 
abatement  or  in  bar  ;(r)  and  if  any  thing  happen  pending  the 
sviit,  which  would  in  ellect  abate  it,  this  may  be  pleaded  putt 
darrein  continuance,  though  there  has  been  a  plea  in  bar ;  be- 
cause the  latter  plea  only  waives  ail  matters  in  abatement,  which 
existed  at  the  time  of  pleading,  imd  not  matter  which  arose 
afterwards;  but  if  matter  in  abatement  be  pleaded  fiuis  dar' 
rein  conti7iuancc,  the  judgment,  if  against  the  defendant,  will 
be  pereniptory,  as  well   on  demurrer  as  on  trial.(/)     A  pica 


(«)  9  East,  82.  to  plead  specially  puis   darrein  con-. 

{v)  4  East,  507,  508.      9  East,  84.  tinuance. 

(vtf)  Hob.   81.    Com.  Dig.   Abate-  («)  7  East,  53.       Titld's  Prac.  4tk 

meat,  1.    '24.    ace.     Ld.    Kaym.    266.  edit.  761. 

Stfii.  493.  coiitr.        See  (Join.  Dig.  (6)  Bro.  Abr.  lit.  Continuance,  p!. 

Abatement,  I.  24.  57.     Bull.  N.  P.  310. 

(.r)    Bull.    X.    P.  309.       See  the  (c)  Bull.    N.    P.   309.      Com.  Dig. 

foi-m,  \»ost,  vol.  2.  6r7.  Abatement,  I.  24. 

0/)  2  Es[).  Rop.  504.  (^/)  2Stra.   1106.       1  Saund.    265. 

(s)  III  9  East,  82.  the  doctrine  in  n.    2. 

4  East,  41S.  and  2  Smith's  Uep.  659.  (e)  Com.  Dig.  Abatement,  I.  24. 

appears   to   have  been  qualified  ;  but  ( /')  (iilb.  C.  P.  I<15.       Alleyn,  6S. 

still  if  a  certificate  has    been  I'btaii^ed  Freem.  252.     2  Stra.  1105,  1106. 
after  issue  ji-ined,  it  may  be  advi^»ble 


OF  PLEAS  PUIS  DARREIN  CONTINUANCE.  636 

iiui&  darrein  contiiiuance  is  not  a  departure  from,  but  is  u  waiver    When   neces- 
of,  the  first  plea,  and  no  advantage  can  afterwards  be  taken  of  *"''^'  '^'* 

With  respect  to  the   tiTnc  when  the  matter  of  this  descrip-   Time    and 
tion  is  to  be  pleaded,  it  appears  that  if  the  ground  of  defence  j","'.  ']^l[  ^" 
arose  after  plea,  or  after  issue  joined,  and  before  the  return  of 
the  venire  facias,  it  should  be  pleaded  in  bank  ;{h)  and  where 
the  defendant  after  pleading,  obtained  his  *certificate  as  a  bank-  *•    637 

rupt,  and  then  pleaded  it  in  bank,  as  a  matter  which  had  arisen 
after  the  last  continuance,  but  in  fact  another  continuance  had 
intervened  between  the  certificate  and  plea,  the  court  per- 
mitted him  to  plead  it  nutic  /iro  tunc  on  payment  of  costs  \ii) 
but  matters  which  have  arisen  after  the  trial,  and  before  the 
day  in  bank  cannot  be  so  pleaded  ;  and  though  it  may  after  the 
jury  have  gone  from  the  bar,  yet  it  cannot  after  they  have 
given  their  verdict. (y) 

Great  certainty  is  requisite  in  pleas  of  this  description  ;(it) 
and  it  is  not  sufficient  to  say  generally  that  after  the  last  con- 
tinuance such  a  thing  happened,  but  theday  of  the  continuance 
must  be  shewn,  and  also  the  time  and  place  must  be  alleged 
where  the  matter  of  defence  arose. (/)  The  foi'ms  of  the  plea, 
whether  pleaded  in  bank  or  at  the  assises,  are  given  in  the 
second  volume. (7?0  The  plea,  when  it  contains  matter  in 
abatement,  concludes  by  praying  judgment  of  the  writ,  and 
that  the  same  may  be  quashed  ;(n)  or  if  the  writ  is  abated  de 
factoy  by  praying  judgment  if  the  court  will  further  proceed. (o) 
In  bar  the  conclusion  of  the  plea  is  that  the  plaintiff  ought  not 
further  to  maintain  his  action,  and  not  that  the  former  inquest 
bhould  not  be  taken,  because  it  is  a  substantive  bar  of  itself,  in 


{g)   I   Salk.    17S.       2  Sti'u.   1105.  Cro.  Juc  261.     Freem.  112.    2Lul^v■. 

Hob.  81.  1143.     2  Salk.  519.    2  \Vi!s.  I;i9.    Co. 

(h)  See  Com.  Dig.  Ab.itement,  I.  Ent.  517.  b.     liasL  Eiit.  549. 

2i.       2  Smith's   Hep.   .396.     See  the  (/)  Id.  ibid.     Bull.  N.  P.  309. 

(brm,  post,  vol.  2.  676.  {m)  Post,  vol.  2.  676,  677.  and  see 

(0  2  Smith's  Kep.  396.  Bull.  N.  P.  310.    Co.  Ent.  517.    Kast. 

( /)    Docl.  Plac.  177.      Bull.  N.  P.  Ent.  549. 

310.     9  East,  321.    Com.  Dig.  Abate-  (?;)  Ci!b.  C.  P.  105.     2I.atw.  1143, 

ment,  1.34.  (&)  3  l.cv.  120.     Biiil.  N.  1*.  311. 

(k)  Doc.  Plac.  297.      Yelv.  Ul.— 


638*  OF  DEMURRERS. 

Time  and       lieu  of  the  *former,  and  consequenlly  must  be  pleaded  to  the 

mode  of  plead'        .  •       /-  .  x 
ing  them.  actlon.(//) 

Pleas  after  the  last  continuance  must  be  verified  on  oath  be- 
fore they  are  allowed,  whether  pleaded  in  bank,  or  at  nisi 
firitts ;('/)  and  they  cannot  be  amended  after  the  assises  are 
over  ;(r)  nor  can  there  be  more  than  one  plea  fiuis  darrein  con- 
ti7iuance.{.s)  But  if  a  plea  fiuis  darrein  continuance  be  filed  and 
verified  on  oaih,  the  court  cannot  set  it  aside  on  motion,  but 
are  boiuid  to  receive  it.(0  When  a  plea  fiuis  darrein  continu- 
ance is  put  in  at  the  assises,  the  plaintifi  is  not  to  reply  to  it 
there,  for  the  judge  has  no  power  to  accept  of  a  replication, 
nor  to  try  it ;  but  ought  to  return  the  plea  as  parcel  of  the  re- 
cord of  nisi  prills ;  and  if  the  plaimiff'  demur,  it  cannot  be 
argued  t]ierc.(T')  Where  the  plea  /mis  darrein  continuance  is 
certified  on  the  back  of  the  /lostea,  and  the  plaintitT  demui-s, 
if  the  dclendant,  on  the  expiration  of  a  rule  given  for  him  to 
join  in  demurrer,  neglect  to  do  so,  the  plaintiff  may  sign  judg- 
mcnt.(w) 


OF  DEJ)lUIiKE/iS.(a) 

Of  Tiemur-  When  the  declaration,  plea,  or  replication,  kc.  is  defective, 
*T/,  ''"''^^'^  either  in  substance  or  form,  the  *opposite  party  may  in  gene- 
^  639  ^^'  demur,  which  has  Ijcen  defined,  that  the  parly  demur- 
ring will  go  no  furth.er,  because  the  oilier  has  not  shewn  suf- 
ficient matter  against  him. (6)  Where  the  pleading  is  defec- 
tive in  substance,  it  is  in  general  advisable  to  demur,  because 
the  party  succeeding  tiieveon,  is  entitled  to  costs  ;  but  where 


(/))  Cro.  Eliz.  49.     2  Lutw.  1143.         (0  2  Wils.  157.     3  T.  K.  554. 
Bull.  N.  P.  310.  (f)  Com.  Dig.  Abatement,  I.  24. 

(9)  Froein.  252.     1  Stra.   493.     2        (?<)  Bac.  Abr.  Pleas,  Q.    Bull.  X, 

Snulh's  Rep.  396.  P.  311. 

(r)  Bac.  Abr.  Pleas,  Q.    Yelv.  181.         (a)  As  to  Demurrers   in   general. 

Preera.    252.     Bull.  N.  P.  309.     But  see  Bac.  Abr.  tit.   Pleas,  N.      Com. 

aee  2  Smith's  Rep.  659.  Dig.    Pleader,  Q.      Saund.  Rep.   Iti- 

(s)  Bro.  Abr.  tit.  Continuance,  pi.  dex  to  notes,  tit.  Demurrers. 
5,  41,    Jeuk.  160.     Gilb.  C.  P.  105.  (6)  5  Mod.  232.     Co.  Lit.  71.  h. 


OF  DEMURRERS.  639 

the  judgment  is  arrested,(c)  or  reversed  on  a  writ  of  error,(f/)   When  proper. 

no  costs  are  recoverable.     When  the  objection  is   a  defect  in 

matter  of  form,  a  special  demurrer  is   siill  permitted  ;  for,  as 

obsei'ved  by  Lord  Hooart,  "  the  statute  of  Elizabeth  requning 

"  a  special   demurrer,  does  not  utterly  reject  form,  for  that 

"  would  be  destructive  of  the  law,  as  a  science,  but  it  only  re- 

<'  quires  that  the  defect  in  form  be  discovered,  and  not  Ubcd  as 

*'  a  secret  snare  to  entrap  ;"{,e)  and  it  was  obseived  by  Eijrcy 

Chief  Justice,  that   "  infinite  mischief  has  been  produced  by 

"  the  facility  of  the  courts  in  overlooking^   errors  in  form  :  it 

"  encourages    carelessness,    and   places  ignorance  too  m.uch 

"  upon  a  footing  with  knowledge  amongst  those  v.ho  practise 

"  the  drawing  of  pleadings. "(y)     Where,  however,  there  are 

merits  to  be  tried,  it  is  in  practice   more  liberal  not  to  demur 

for  a  mere  mistake  in  form. 

Demurrers  are  either  general  or  special ;  general  when  no   IHien  geiic- 
particular  cause  is  alleged  ;  afiecial  when  the  particular  imper-  ''^  "  speau  . 
fection  is  pointed  out,  and  insisted  upon,  as  the  ground  of  de- 
iTiurrer  ;  the  former  will  suffice  when  the  pleading  is  defective 
in  sub&tafice,  and  the  latter  is  requisite  where  the  objection  is 
only  to  the /or ?n  of  pleading.(^)     *At  common  lav/  a  special  ^   g4Q 

demurrer  was  not  necessaiy,  except  in  the  case  of  duplicity, 
and  the  party  was  at  liberty  on  a  general  demurrer  to  take  ad- 
vantage of  any  objection,  however  trifling  ;(A)  to  remedy  which, 
the  27  £liz.  c.  5.  after  reciting  "  that  excessive  charges  and 
"  expenses,  and  great  delay  and  hindrance  of  justice  hath 
*'  grown  in  actions  and  suits  between  the  subjects  of  this  realm 
"  by  reason  that  upon  some  small  mistaking,  or  want  of  form 
"  in  pleading,  judgments  are  often  reversed  by  writs  of  error, 
"  and  oftentimes  upon  demurrers  in  law  given  otlierwise  than 
"  the  matter  in  law,  and  the  very  right  of  the  cause  doth  re- 
"  quire,  whereby  the  parties  are  constrained  either  utterly  to 
"  lose  their  right,  or  else  after  long  time  and  great  trouble 
"  and  expenses,  to  renew  again  their  suits,"  etiacted,  "  that 
"  from  thenceforth,  after  demurrer  joined  and  entered  in  any 


(c)  Cowp.  407.  (g)  Bac.  Abr.  lit.  Picas,  N.  5.  Co. 

(d)  I  Stra.  617.  Lit.  72.  a. 

(e)  Hob.  232.    1  Sauad.  537.  n.  5.        (//)  .I  Salk.  122. 
(/)1B.&P.  59. 


640  OF  DEMURRERS. 

»7/^w,  g-en,?-  «  action  or  suit  in  any  court  of  record  within  this  realm,  the 
"judges  shall  proceed  and  give  judgment  according  as  the 
"  very  right  of  the  cause  and  matter  in  law  shall  appear  unto 
"  them,  without  regarding  any  mfierfcciions  defect,  or  ivant  o/' 
*^/brm,  in  miij  writ,  return,  /iluint,  declaration,  or  other  Jileudivg, 
*'  process  or  course  of  proceeding  whatsoever,  except  those 
"  only  whiclj  the  party  demurring  shall  specially  and  particu- 
"  larly  set  down  and  express,  together  with  his  demurrer,  and 
"  that  no  judgment  to  be  given  shall  be  reversed  by  any  writ 
''  of  error  for  any  such  imperfection,  defect,  or  want  of  form, 
"  as  is  aforesaid,  except  sucli  only  as  is  before  excepted." 
*   641  The  chief  difficulty  that  arose  in  the  construction  *of  this 

statute,  was  the  distinguishing  between  what  was  matter  of 
form,  and  matter  of  substance,  and  many  defects  which  arc 
now  deemed  mere  form,  were  held  not  to  be  aided  by  this  sta- 
tute, such  as  the  omission  of  the  words  vi  et  armis,  contra 
pacern,  8cc.(z')  To  remedy  this,  the  4  Jnn.  c.  16.  directs,  "  that 
*'  where  any  dcnuurer  shall  be  joined  and  entered  in  any  ac- 
*'  tion  or  suit  in  any  court  of  record  within  this  realm,  the 
*' judges  shall  proceed  and  give  judgment  according  as  the  very 
*'  right  of  the  cause  and  matter  in  law  shall  appear  unto  them, 
"  without  regarding  any  imjierfection,  ojnissioJi  or  defect,  in  any 
*'  writ,  return,  plaint,  declaration  or  other  fdrading,  process  or 
*'  course  of  proceedings  whatsoever,  cxccfit  those  only  which  the 
*'  Jiarty  demurring  shall  s/ucially  and  particularly  set  down  and 
*'  express,  together  with  his  demurrer,  as  causes  of  the  sume^ 
"  notwithstanding  that  such  imperfection,  omission,  or  defect 
"  might  have  heretofore  been  taken  to  be  7natter  of  substance 
"  and  not  aided  by  above-mentioned  statute,  so  as  sufficient  mat- 
*'  ter  appear  in  the  said  pleadings,  upon  which  the  court  may 
"  give  judgment  according  to  the  very  right  of  the  cause  ;" 
and  it  goes  on  to  provide,  "  that  no  advantage  or  exception  shall 
*'  be  taken  of  or  for  an  immaterial  traverse,  or  of  or  for  the 
"  default  of  entering  pledges  upon  any  bill  or  declaration,  or  of 
*'  or  for  the  default  of  alleging  the  bringing  into  court  any 
*«  bond,  bill,  indenture,  or  other  deed  whatsoever,   mentioned 


(/)  Com.  Diij.  Pleader,  3   M.   7.     Bac.  Abr.  Pleas,  N.  6.  1  Saand.  SK  n, 

1.    Hob.  '2SH.    Sav.  SS, 


OF  DEMURRERS.  *642 

»'  *in  the  declaration  or  oiher  pleadings,  or  of  or  for  the  default   TVhm  gene- 

,  nil  or  tfiecioX, 

«  of  alleging  of  the  bringing  into   court  letlers  testamentaiy, 

«  or  letters  of  administration,  or  of  or  for  the  omission  of  vi 

«  £5*  armist  et  co7itra  fiacc?n,  or  either  of  them,  or  of  or  for  the 

«  want  of  averment  o^  hoc  fiaratua  est  verijicare^  or  hoc  fiaratua 

"  est  verijicare  per  recordum  ;  or  of  or  for  not  alleging /^rozi? 

^^  patet   per    recordum;    but   the    court  shall  give   judgment 

"  according  to  the  very  right  of  the  cause  as  aforesaid,  with- 

"  out  regarding  any  such  imperfections,  omissions,  and    de- 

"  fects,  or  any  other  matter  of  like   nalure,{j)  except  the  same 

«  shall  be   specially  and    particularly  set  down  and  shewn  for 

"  cause  of  de7nurrer."     It  was  provided  by  the  seventh  section, 

that  the  act  should  not  extend  to  proceedings  upon  any  petial 

statute  ;  but  this  was  altered  by  the  4  Geo.  II.  c.  26.  s.  4.(A-) 

Since  these  statutes,  the  party  on  a  gcJieral  demurrer  can 
only  take  advantage  of  defects  in  sub.^tance  ;  and  therefore,  if 
the  defect  objected  to  be  not  clearly  of  that  nature,  it  is  safest 
to  demur  specially,  iii  which  case  the  party  may  not  only  take 
advantage  of  those  particularly  pointed  out,  but  also  of  any 
substantial  defect,  though  not  specified.(/)  But  where  the  de- 
fendant is  under  terms  of  pleading  issuably,  no  formal  defect 
can  be  assigned  as  cause  of  demurrer,  either  to  the  whole  oi* 
a  part  of  the  declaration  or  replication,  and  if  it  be,  the  plain- 
tiff *may  sign  judgment  ;(ot)  but  the  defendant  may  demur  ^  /i^o 
where  there  is  a  substantial  defect  affecting  the  merits  of  the 
tase.(/z) 

A  demurrer  is  either  to  the  ivhole  or  a  part  of  a  declaration  ;  Where  only 

and  if  there  be  several  counts,  or  in  covenant  several  breaches,  I;?    *  J"""A,°^ 

'  '  the    pleading 

some  of  which  are  sufficient  and  the  others  not,  the  defendant 
should  only  demur  to  the  latter,  for  if  he  were  to  demur  to  the 
whole  declaration,  the  court  would  give  judgment  against 
him  ;(o)  and  this  rule  equally  applies  to  one  count,  part  of 
which  is  sufficient  and  the  residue  is  not,  ^yhen  the  matters  arc 


(  /)  See   observations  as  to  extent  Ante,    506.      Tiild's  Prac.    Cvl    cdii.; 

«f  tiiese  woi-Hs,  2  H.  Bl.  262.  429.  4tli  c.lit.  419,  420. 

(i)  Willcs,  601.     Tidd's  Pi-ac.  4th  («)  Id.  il.id.     Stra.  1185. 

edit.  822.  \o)  Com.  Dig    Pleader,  Q.  3.  5.     i 

(/)  I  Saund.  .337.  b.  n.  3.     Tidd's  Saund.  2S6.   k  id.    note  9.     2Saund. 

IPrac.  4th  edit.  641.  S79,  380.  ii.  14.     1  WitS.  ^tS.     1  Nrw 

(w)   7   T.  R.    53f«.     1   E.lst,    411.  Rep. -fs. 


643 


OF  DEMURRERS. 


*  644 


Wlieu  may 
denmrthi) 


TT'/icre  only  lo  divisible  in  their  nature  ;  if  a  plaintift' declare  fortakine:  his  mo- 

a  part  of   the  ^  ^  ° 

pieaihng.  iicy  and  also  certain  goods,  without  shewing  tliat  the  goods  were 
Iiis  property,  the  count  will  be  good  as  to  the  money,  and  it"  the 
defendant  demur  generally  to  the  whole,  the  plahiiiflf  will  have 
judgment  ;(/0  but  where  there  is  a  misjoinder  either  of  parties  or 
causes  of  action,  the  demurrer  should  be  to  the  whole.(<7)  And 
if  a  plca^  avowry  or  refdication,  each  of  which  we  have  seen  is 
entire,  be  bad  in  part,  it  is  bad  for  the  whole  ;(r)  and  in  that 
case  the  demurrer  should  be  to  the  whole  plea  or  replication, (s) 
or  it  will  be  a  discontiimance  ;(;)  except  in  the  case  of  a  plea 
of  set-ofi',  two  parts  of  which  are  *considered  as  similar  to  two 
counts  in  a  declaration,  and  if  one  part  be  good,  a  general  de- 
murrer to  the  whole  will  be  bad.(H) 

In  general  a  party  cannot  demur,  unless  the  objection  appear 
the  ohjection  on  the  face  of  the  jirc ceding  pleadings  ;{v)  but  in  some  cases, 
pear  on   the  ^^here  the  plaindft'  in  his  declaration  partially  states  a  deed 

face  of  the      ^vhich  is  defective,  or  contains  matter  disqualifying  the  part 
pleadings.  i  .;      o  tr 

Stated,  the  defendant  may  crave  oyer  of  the  deed  and  set  forth 
the  whole,  thereby  making  it  part  of  the  declaration,  and  then 
demur  either  in  respect  of  the  defect  in  the  deed,  or  the  im- 
proper manner  in  which  the  plaintiff  has  stated  it,  and  this  is 
the  proper  course,  when  upon  oyer  it  would  appear  that  a  bail- 
bond  is  defective. (to)  So  a  deed  untruly  stated  in  a  plea,  be- 
ing set  out  upon  oyer  by  the  plaintiff,  becomes  part  of  the 
plea,  and  if  it  thereby  appear  that  the  plea  is  false,  the  plaintiff 
need  not  shew  any  matter  of  fact  in  his  replication  to  maintain 
his  action,  but  may  demur  ;(.r)  for  it  is  a  general  rule  that  an 
indenture   set  out  upon  oyer  becomes  part  of  the  preceding 


(/>)  2  Saund.  379.  1  Salk.  218.  2 
Saund.  171.  a.  n.  1.  1  Mod.  271.  See 
tlie  form,  1  Saund.  lOS,  109. 

{q)  4  T.  R.  547.  Ante,  206.  2 
Saund.  210  &  210.  a. 

(7-)  Ante,  523,  5  24.  618.  1  Saund. 
28.  and  id.  n.  2.  28G.  337.  n.  7.  2 
Saund.  124.  1  Salk.  312.  I  T.  U.  40. 
.'}  T.  R.  374. 

(s)  See  an  exception  in  an  avowry, 
I  Saund.  286. 

(0  Cora.  Dig.  Pleader,  Q.  3. 


(?0  2  Bl.  Rep.  910. 

(r)  See  tlie  forms  and  notes,  2 
Saund.  364  to  3G7.  Com.  Dig.  Plead- 
er, 3.  And  see  an  exception  in  a  de- 
claration against  a  prisoner,  ante,  281. 
2S8.     1  Wils.  119. 

(w)  2  Saund.  60.  in  notis.  See  the 
exceptions,  and  when  the  facts  must 
be  pleaded,  ante,  479,  480.  and  1 
Saund.  295.  b. 

(,t)  1  Si-auid.  316,  317. 

(w)  1  Suund.  317. 


OF  DEMURRERS.  644 

In  point  o?  form  no  precise  words  are  necessary  in  a  demur-  Forms  of  de- 
rer,  and  a  plea  which  is  in  substance  a  demurrer,  thoui^h  very  '""''"''■ 
informal,  will  be  considered  as  such  ;(z)  and  it  is  a  general  rule 
*that  there  cannot  be  a  demurrer  to  a  dernurrer.(n)     The  usual  ^-    /?^r 

form  of  a  general  demurrer  to  a  declaration^  after  statini^  the 
title  of  the  court  and  term,  and  the  names  of  the  parties  in  the 
mar^^in,  and  the  defence  as  in  the  commencement  of  a  pleci,(6) 
alleges  that  the  declaration  and  the  matters  therein  contained 
and  as  therein  stated,  are  not  suflicient  in  law  to  enable  the 
plaintiff  to  support  his  action,  and  concludes  with  a  verification 
and  an  appropriate  prayer  of  judgment ;  though  a  verification 
Is  unnecessary  ;(c)  or  if  the  demurrer  be  to  a  particular  count 
or  breach,  it  is  qualified  accordingly.(f/)  A  general  demurrer 
to  a  filea  i7i  abatement^  states  that  it  is  not  sufficient  to  quash 
the  bill  or  writ,  and  prays  judgment  that  the  defendant  may 
answer  over  or  further  to  the  declaration. (f)  To  a  pAca  in  bar^ 
the  demurrer  is  quia  placitum^  is^c.  materiaque  in  eodem  con- 
tenta  mijius  sufficiens  in  lege  existet,  iSfc.  unde  firo  dcfectu  nuffi- 
cientis  Jilaciti^  isfc  fieiit  judicium^  cfc.  eitlier  for  damages,  or 
for  debt  and  damages,  &^c.  according  to  the  nature  of  the  ac- 
tion.(/)  If  the  demurrer  be  to  a  replication^  rejoinder^  Sec. 
after  stating  that  the  same  and  the  matters  therein  contained 
are  not  sufficient  in  law,  it  concludes  with  a  prayer  of  judg- 
ment either  ..igainst  or  for  the  plaintiff,  according  to  the  situa- 
tion of  the  party  demurring. (5-)  If  the  demurrer  be  special, 
the  assignment  of  the  causes  of  demurrer,  are  usually  intro- 
duced at  the  end  of  the  general   demurrer  in    *lhe  following  ^   %'i& 

words.     "  And  the  said ,  according  to  the   form  of  the 

"  statute  in  such  case  made  and  provided, (A)  states  and  shews 
"  to  the  court  here  the  following  causes  of  demurrer  to  the 
"  said  declaration,"  (or  "  to  the  ^zXA  first  count  of  the  said  de- 


(:)    5   INIod.   131.     3  Lev.  222.     2  (c)  Co.    Lit.   71.  h.     1    Lt-oti.   24. 

Sauml.  129.  ii.  6.    Plow.l.  400.  As  to  Post,  vol.  2.  6r8. 
the  form  in  general.  Com.  Uig.  Plead-         (rf)  Post,  vol  2.  678. 

cr,  Q.  3.  (e)  Post,  vol.  2.  67'J. 

(a)  Bac.    Abr.  Pleas,   N.  2.     Salk.  (/)   Co.  Lit.  71.  b.      Post,  vol.  2. 

21 'J.  C79,  680. 

{b)  .\s  ante,  ."527,  .528,  529.  anil  see  (  §■)  Post,  vol.  2.  681. 

the  form  post,  vol.  2.  078.  (/i)  4  Ann.  c.  16. 

Vol.  I.  [  59  ] 


G4G  0¥  DEMURRERS. 

Forins  of  de-  "  claratioii,"  or  "  to  the  said  breach  of  covenant  first  above  as- 
muiTer.  ^^  sig„gj^'»  q,.  a  to  the  said  plea"  Scc.)(/)  and  it  is  usual  after 

statin?^  the  causes  of  demurrer  to  conclude,  "  and  also  for  that 
"  the  said  declaration,"  (or  "  first  count,"  or  "  plea,"  or  "  re- 
"  pliccition,")  is  in  other  respects  "  uncertain,  informal,  and 
"  insufficient  i"  but  these  labled  words  are  wholly  unavailable, 
for  when  it  is  necessary  lo  demur  -s/u'ciany,  it  is  not  sufficient 
thai  the  demurrer  be  c/uia  card  forma^  b\it  it  must  be  shewn 
specially  in  what  point  in  panic iilar  the  form  is  defective,  and 
as  it  has  been  said  the  statutes  oblige  tlie  party  demurring  to 
lay  his  finger  upon  the  very  point ;{})  and,  therefore,  a  de- 
murrer for  duplicity  quia  dufilex  est  et  caret  fonna^  is  not  suffi- 
cient, and  it  should  shew  in  what  the  duplicity  consists  \{k) 
and  after  the  passing  of  the  statute  of  FAizabeth,  a  rule  was 
made,  that  "  upon  demurrers,  the  causes  shiill  be  specially 
"  assigned  and  not  involved  with  general  unapplied  expressions 
*'  of  '  double,*  '  negative  pregnant,'  '  uncertain,'  '  wanting 
"  '  form,'  and  the  like ;  but  shall  shew  specially  wherein» 
"  in  order  that  the  other  party  may  as  the  cause  shall  require, 
-)H-.  647  "  either  join  in  demurrer  *or  amend,  or  discontinue  his  ac- 
"  tion."(0  If  the  plaintiff"  demur  to  a  pica  in  abatement  as 
if  it  had  been  a  plea  in  bar,  it  will  be  a  discontinuance  ;(to)  and 
a  demurrer  to  such  plea  should  conclude  with  praying  judg- 
ment that  the  writ  or  bill  may  be  adjudged  good,  and  that  the 
defendant  may  answer  further  or  over  thereto. (?z) 
When  the  A  party  should  not  demur  unless  he  be  certain  that  his  own 
^ud"meiit°'a^  previous  pleading  is  substantially  correct,  for  it  is  an  eslablish- 
grainst    the      q^\  j-qjc  that  upon  the  arirument  of  a  demurrer,  the  court  will, 

first  riLflctive  .  .  -  n  •  ,  ,  • 

pleading.  notwithstandmg  the    detect  of  the  pleadmg  demurred  to,  give 

judgment  against  the  party,  whose  pleading  was  first  defec- 
tive in  substaJice  ;  as  if  the  plea  which  is  demurred  to  be  bad, 
the  defendant  may  avail  himself  of  a  substantial  defect  in  the 


(0  Post,  vol.  2.  G-8,  erg.  681.  (/)    Rule,    Mich.    Term,    A.    D. 

(/)   Com.    Di.^.     PlcRcler,    Q.    9.  1654,  s.  17.     Willes,  220. 

Hob.  232.     Per  Holt,  C.  .T.     1  Salk.  (?m)  I  Salk.  218.     Ante,  456. 

219.  I  Saund.  160.  11.  1.  337.  n.  3.  («)  2   Saund.  210.  g.  n.  g.     Ante; 
(A?)    1    Wils.   219.1    Salk.   219.     1  456.' 

Saund.    160.  u.    1.  337.  n.    3.    Willes, 

220.  Doct.  Plac.  147. 


JOINDER  IN  DEMURRER.  647 

declaration. (o)  But  this  rule  does  not  apply  where  the  ob-  Forms  oj  de- 
jection  to  the  preceding  pleading  is  merely  a  detect  in  form^ 
and  such  as  would  be  aided  on  a  genera  demurrer,  by  the 
statute  of  Elizabeth  or  Anne.,  or  at  common  law  ;  and  by  plead- 
ing over  many  defects  in  form  are  aided  ;(/;)  and  we  have  seen 
that  upon  a  demurrer  to  a  plea  in  abatement,  no  objection  can 
be  taken  to  the  form  of  the  declaration  .(y) 

If  the  plaintiff  or  the  defendant  join  in  demurrer^  the  Joinder  in  de- 
joinder  concisely  contradicts  the  demurrer,  by  stating  that  the 
declaration  (or  the  plea,  8cc.)  and  the  matters  therein  contain- 
ed, *in  manner  and  form  as  stated,  are  sufficient  in  law  to  bar  ^  648 
the  action,  if  the  demurrer  be  to  a  declaration,  or  to  quash 
the  bill  or  writ  if  in  abatement,  or  to  preclude  the  plaintiff 
from  maintaining  his  action  if  to  a  plea  in  bar,  and  usually 
offers  to  verify  the  declaration  or  plea,  and  concludes  with  a 
prayer  of  judgment,  though  the  latter  seems  unnecessary. (r) 
A  joinder  in  demurrer  to  a  replication  to  a  plea  in  abatement, 
should  not  conclude  with  praying  judgment  for  debt  and  dama- 
ges, for  to  conclude  in  chief  in  such  case  would  be  a  discon- 
tinuance, and  the  plaintiff  should  pray  judgment  that  the  de- 
fendant may  answer  over  ;(s)  but  if  the  defendant  has  demur- 
red to  a  declaration,  and  concluded  his  denmrrer  as  in  abate- 
ment, the  plaintiff  may  join  in  bar  and  shall  have  judgment 
accordingly. (^)  The  points  relating  to  amendments,  and  the 
general  rules  as  to  when  defects  in  pleading  are  aided,  have 
already  been  partially  considered,  and  are  so  fully  treated  of 
in  the  books  of  practice  that  any  further  observations  upon 
them  in  this  treatise  are  unnecessary. 


(o)  1  Saund.    119.  n.   7.     1   Saund.  (  9  )  Ante,  457.     Lutw.  592.  1667. 

285.  n.  5.     Hob.  5G.     Willes,  476.     2  1604. 

Wils.  150.  (?)    Co.    Lit.   71.  b.     2  Wils.  74. 

(/>)  1   Lord   Raym.   369,    .'^70.     3  See  the  forms  post,  vol.  2.  682,  68v^ 

Wils.  297.      Wille,^,  476.       5  Burr.  (s)  2  Saund.  210.  g. 

2588.      Cro.  Eliz.  825.      Cem.   Dig.  {t)  3  Lev.  223. 
Pleader,  E.  37. 


INDEX. 


A 


BATEMENT. 

in  re-j;  eci  of  the  parties  to  a  suit,     (see  title  Parties.) 

by  non-joind'T  or  misjoinder,  how  to  be  objected  to, 
of  a  plaintiff,  in  an  action  on  a  contract,  7,  8,  9.  442. 
in  an  action  for  a  tort,  51  to  54.  442. 
in  an  action  by  executors  or  administrators,  13. 
of  a  (/f/ena'an?,  in  an  acticn  on  a  contrnct,  29  442- 
in  an  action  for  a  tort,  73  to  77.  442. 
by  death, 

of  one  of  several  plaintiffs  or  defendants  pending-  tlie  suit,  55. 

death  of  one  don't  abate  suit  if  cause  of  action  sunive,  55.  436- 
in  actions  in  form  ex  contractu. 

surviving-  oblig-ees,  Sec  to  sue,  11. 
death  of  husband  or  wife,  plaintiff,  20,  21. 
surviving  oblig-or,  8cc.  to  be  sued,  37- 
death  of  husband  or  wife,  defendant,  43, 4. 
in  actions  in  form  ex  delicto, 
survivor  to  sue,  55. 

death  of  husband  or  wife,  plaintiff,  64. 
deatli  of  husband  or    wife,  defendant,  82. 
of  a  sole  plaintifi  pending  the  action,  436. 

ABATEMENT,  PLEAS  IN,  (As  to  pleas  to  jurisdiction,  see  title  Jurisdiction.) 
general  nature  of,  and  diilerence  between  them  and  pleas  in  bai,  434,  5. 
what  matter  may  be  pleaded  in  abatement  or  in  bar,  ibid, 
division  of. 

Relating  to  the  person,  435  to  438. 
of  the   plaintiff,  435. 

no  such  person  In  existence,  435. 
death  of,   (see  title  Death  and  Abatement,)  Ao5,  6. 
alien  enemy,  436. 
attainted  of  treason  or  felony,  436. 
outlawed,  436.  635- 
under  a  premunire,  436. 
excommunicated,  436.  635. 
an  infant  suing  by  attorney,  436. 
coverture,  (see  the  title  Coverture,')  436,  7. 
of  the  defendant. 

coverture,  (see  title  Coverture,)  437. 
reiilications,  438. 
infancy,  (see  title  Infancy,)  438. 
Relating  to  the  coi/nf. 

variance  between  writ  and  count  no  longer  pleadable,  438. 
Relating  to  the  -writ  cr  bill. 

•why  so  called  and  their  effect,  439- 
Vol.  I.  [  60  :i 


659  INDEX. 

ABATEMENT,  PLEAS  lN—(conti,wed) 

Relaung  U>  th-  r^rit  m-  MtI~[co7itinued) 

to  the  form  of  the   wi  it,  439  to  443. 

varianre  or  detect  in  writ  not  now  pleadable,  439,  440. 
malteTs  pleadable,  only  those  extrinsic  or  (/e/io;i',  439,  440. 
mistake  in  addition  when  not  pleadable,  440. 
misnomer,  (see  title  Mitsnotner.) 
of  the  pluintiti,   440. 
of  the  defendant,  440,  1. 
nonjoinder   or   misjoinder,  when  and  how  to  be  taken  advan- 
plaintifis  not  married,  441.  L^age  of,  442. 

one  of  plaintiH's  fictitious  or  dead,  441. 
another  joint  contractor,   not  sued,  441. 
anotlier  executor  or  admiaisti-ator  not  sued,  441. 
anollier  person  who  sliould  be  made  defendant,  441,2. 
requisites  of  such  pleas,  442. 
to  the  action  of  the  writ. 

action  misconceived  as  to  form,  442 
action  prematurely  brougiu,  442. 
anotiier  action  depending  fur  same  cause,  443. 
replication  to  it,  443. 
Qualities  of,  &c. 

may  be  to  the  ivholt;  or  part  of  the  declaration,  443- 

may  dt-mur  to  part,  and  plead  in  bar  or  abatement  to  other  part,  443. 
one  defendant  may  plead  in  abatement,  ar.other  in  bar,  543.  447. 
in  case  of  misjoinder,  &c.it  is  now  more  usual  to  demur,  444. 
wlu-n  the  ])lea  should  only  be  to  a  part  of  the  declaration,  444. 
prayer  of  the  plea,  444. 
cerlainty  and  accuracy  required  in  framing  pleas  in  abatement,  444,  5. 
must  g'ive  the  plaintif}'  a  better  writ  or  bill,  445. 

this  is  the  criterion  to  distinguish  it  from  a  plea  in  bar,  445. 
general  requisites  and  form  ot,  444  to  447. 
venue  not  necessarj-,  446. 
duplicity,  what  objectionable,  446,  7. 

cannot  plead  two  outlawries,  &c.   447. 

cannot  plead  in  abatement  ^nd  bar  to  the  same  matter,  447. 
Form  of, 

title  of  the  plea,  447. 

when  may  be  with  a  special  imparlance,  442,  3.  448. 
of  what  term,  447,  8. 
consequences  of  mistake,  448. 

plaintiff  may  sign  judgment,  ib. 
apply  to  court  to  set  it  aside,  448. 
demur,  ib. 
state  the  estoppel,  ib. 
aided,  if  replied  to,  ib. 
cemmencement  of  the  plea, 

accuracy  required  in  statement  of,  445. 
defendant's  appearance,  448. 
•when  it  must  be  in  person,  448,  9, 
■when  it  may  be  by  attorney,  449. 
•when  by  guardian,  449. 

the  defence,  whether  full  or  half,  449,  450. 
prayer  of  judgment  at  the  beginning,  when  proper,  450,  1,  2. 
when  of  writ  or  bill  and  declaration,  ib. 
consequence  of  wr'-ng  commencement,  446. 
body  of  the  plea, 

accuracy  and  certainty  requisite,  (see  Sltiolities  supra,)  444,  S. 
venue  not  necessary,  446 

plea  of  nonjoinder  must    aver    the  life  of  the  party,  442'. 
conclusion  of  the  plea, 

very  material  and  great  accuracy  requisite,  445.  452", 


INDEX.  651 

ABATEMENT,  PLEAS  liJ-(conthnied) 
Conclusion  of  Ihc  jilea — {continued) 

consequence  of  a  plea   cnntuinlng  matter  in  bar  concluding    in   abate- 
ment,  446. 
of  a  plea  concluding'  in  bav,  446. 
of  a  plea  of  privilcg'e  of  person,  450. 
of  a  plea  to  tiie  disability  of  the  person,  450. 
of  a  pleo  of  coverture,  450. 

of  a  ])lea  of  excommunicati.-m,  or  otiier  temporar3'  disabiUty,450ii'' 
of  a  plea  to  the  writ  and  declaration,  451,  2. 
of  a  j)lea  to  tlie  bill  and  declaration,  451. 
Affidavit  OF   truth,  (see  title  y^^f/«"c/f.) 
when  requisite  at  common  law,  452. 
whtn  required  by  statute,  4  Ann-  c.  16.  s.  11.  452. 
operation  and  extent  of  this  statute,  452. 
who  to  be  made  by,  453. 
at  what  time  it  may  be  made,  ib. 
form  and  requisites  of  it,  ib. 
consequence  of  omi.ssion,  ib. 
Replications,  &c.  to,  (see  title  Replication.) 
to  particular  pleas,  (see  title  Kepitcution.) 
to  a  plea  of  misnomer,  454. 
may  amend,  454. 

or  enter  a  cassetur  billa  or  breve,  454. 
to  a  plea  of  nonjoinder  if  true  must  proceed  de  novo,  ib. 
must  enter  cassetur  before  commencement  of  fresh  action,  454.  44i5. 
when  the  plaintiff  should  reply,  454. 
when  the  plaintiff  should  demur,  454. 
when  lie   may  sign  judgment?  &c.  454.  448. 
when  reply,  ajipearance  as  estoppel,  454. 
form  and  requisites  of. 

commencement  and  conclusion  of,454 
prayer  of  judgment,  455. 
Issue,  verdict,  and  judgment  on,  455.  446. 
Demurrers,  in  case  of,   (see  title  Demurrer.) 
to  a  plea  of  replication,  456,  7. 
form  of  demurrer  to  plea,   456,  7. 
Joinder  in  demurrer,  form  of,  456. 
•    Argument  of,  no  objectif)n  on,  to  declaration,  457. 
Judgment  on,  457,  8.  446. 
Co.sts,  &.C.  457. 
Pleas  of  puis  darrein  continuance,  (see  that  title,)  636; 

ABSOLUTE  RIGHTS. 

when  not  necessary  to  be  stated  in  pler.dlng,  564. 

\BSQUE  HOC  (see  title   Traverse.) 
language  of  a  traverse,   596. 

ABUTTALS. 

statement  of,  in  a  declaration,  36,3,  4. 
new  assignment,  566. 
\CCORD  AND  SATISFACTION, 
plea  of, 

may  be  given  in  evidence  in  assumpsit  under  general  issue,  472. 
must  be  pleade<l  in  an  action  on  a  specially,  4bG. 
when  no  pica  in  an  action  on  a  S])eciaUy,  48U,   1 

may  be  given  in  evidence  under  not  guilty  in   actions  on  the  case,' 496. 
nuist  be"  pleaded  in  trespass,  496.  486.  ^486 

replications  to  in  general,  5SU.  592. 
in  asssumpsit,  553. 
in    case,    560. 
iTi  trespass,  569. 


<>"^2  INDEX. 

ACCOUNT. 

pleas  in,  48G. 

ACCOUNT  STATED, 
count  in  assumpsit, 

form  of  it,  336. 

use  of  it,  343. 

by  or  against  executors,  &c.  343. 

ACTIO  ACCREVIT,  &c. 

when  this  allegation  is  unnecessary  in  debt,  545,  6. 

in  debt  on  penal   statute,  35y, 

ACTIO  NON,  &c. 

actio  non  habere  debet  when  proper,  531. 

when  oncrari  non,  Sec.  proi)er,  ib. 

when  it  should  be  as  to  the  further  maintenance  of  the  action,  531,  2- 

not  proper  in  pleas  in  abatement,  446. 

ACTIO  PERSON ALIS  MORITUR  CUM  PERSONA. 

maxim  and  rules  relating  to  in  general,  56  to  59.  and  77  to    86. 
don't  apply  when  the  action  is  in  form  ex  contractu,  56,  7. 
efl'ect  of  death,   (see  title   Abatonent.) 

1st.  of  the  party  injured,  in  case  of  an  injury,  56  to  59. 

to  the  person  no  action  lies,  56. 

to  personal  property  action  lies  and  when,  56  to  58. 

to  real  property  wlien  action  lies,  58,  9. 
2dly.  of  tiie  wrong  doer,  and  general  rule  as  to  injuries,  7B. 

to  the  person,  78. 

to  persontd  property,  78,  9. 

to  real  property,  80. 
executor  may  support  replevin,  159. 

ACTION  PREMATURE, 
plea  of,  442,  3. 

ACTIONS. 

by  and  against  whom  to  be  brought,  (see  title  Parties  per  totum.) 
distinction  between  action  in  form  ex  contractu  and  ex  delicto,  2.  52.  TS. 
form  of  action  misconceived,  jilea  of  and  consequences,  442. 
prematurely  brought,  plea  of,  &;c.  442. 

another  action  depending  for  same  cause  plea  of,  in  abatement,  442,  3. 

in  bar,  443. 

replication  to,  443.  454. 
When  an  action  lies  in  general,  83  to  87. 
Forms  of  action 

established  forms  to  be  observed,  85,  6. 
division  of 

1st.  ex  contractu. 

Assumpsit,  (see  title  Assumpsit,')  88  to  100. 
Debt,  (see  title  Debt,)   100  to  109. 
Covenant,  (see  title  C'o'venant,)  109  to  117. 
Detinue,  (see  title  Detinue,)  117  to  122. 
and  ex  delicto, 

nature  of  injuries  ex  delicto  as  they  affect   the  forms 
of  action,   122  to  131. 
material  distinctions  between  injuries, 
with  or  without  force,  122. 
immediate  or  only  dnsequential,  122. 
what  injuries  are  forcible,  133  to  125. 
what  immediate  or  consequent, 
Ifegality  of  original  act  when  not  materia],  128. 


INDEZ-  ^55 

ACTIONS— (confiViufa) 

intent  when  not  material,  129. 

summary  of  points,  on  which  tlie  form  of  action  may  de- 
pend, 131. 
Case, (see  title  Case,)  133  to  147. 
Trover,  (see  title  Trovtr,)  147  to  157. 
Ueplevjn,  (see  title  I<ep!tvin,)  157  to  162. 
Trespass,  (see  title  Trtspass,)  162  to  187. 
Ejectment,  (see  titk-  Ejectment,)   188  to  193.  ^ 
Cftnseauences  of  mistake  in  form  of  action,   and  mode  of  objecting  to,   193  to 
^  [196  442. 

if  the  objection  appears  on  the  face  of  the  declaration, 
formerly  usu:,l  \o  ])leud  in  abaltmeni,  44<t. 
defendant  may  (lemur,  194. 

defendant  may  move  in  arrest  of  judgment,  194. 
defendant  may  support  error,  194. 

not  in  treneral  a  ground  of  nonsuit  on  account  of  costs,  194. 
if  the  objection  does  not  appear  on  the  face  of  the  declaration, 

the  ground  of  nonsuit,  and   ciefendant  entitled  lo  costs,  194,  5i 
plaintif  rriav  prt.ceed   in  a  fresh  action,  195. 
Of  joinder  of  actions,  (see  title-  joinder  nf  Actions,)  196  to  £07- 
Of  election  of  actions,  (see  title  Election  of  Actions,)  207  to  214. 

AD  D.\MNUM,  (see  iit\e  Damage.) 

when  proper  or  not,  in  conclusion  of  a  declaration,  360.  397,  8. 
in  debt  qui  tam,  360. 
in  covenant,  362. 
f  in  genei-al,  399-  400. 

ADDITIONS.     Statute  of, 

additpin  of  defendant's  residence  and  degree  necessary  in  original  writ,  ?4"6; 

what  addition  proper,  246,  7. 

not  necessary  in  a  declaration,  247.   288. 

when  not  pleadable  in  abatemeni,  440. 

ADMINISTRATOR,    (see  title  Parties  and  Executor.) 

ADMISSION,  (see  title  Confession  and  Avoidance,)  600. 

AFFIDAVIT. 

of  truth  of  dilatory  pleas, (see  title  Ahatevrcnt,)  452,  3. 

of  truth    of  pleas  puis    darrein    continuance,   (see  title   Puis  Darrein  Conttntt- 
ance,)  633. 

AGENT,    (see  titles  Parties,  Master  and  Servant,  and  Servant.) 
when  he  can  or  cannot  sue  on  a  contract,  5. 
when  he  may  or  may  not  be  sued  on  a  contract,  25,  6. 
when  he  may  be  sued  for  a  tort,  67.  69. 

AGISTOR. 

of  cattle,  may  sue  for  injuries  thereto,  48. 

ALIA  ENORMIA. 

statement  of,  in  trespass,  and  what  may  be  proved  under  it,  387,  ^" 

ALIEN  ENEMY. 

when  it  may  be  pleaded  in  abatement  or  bar,  435,  6. 

when  it  may  be  given  in  evidence  in  assumpsit,  470.  47.i" 

when  it  should  be  pleaded,  473. 

certainty  requisite  in  the  plea,  238: 

replication  to,  551,  2. 
ANCIENT   DEMESNE. 

plexof,  429. 


^^^  INDEX. 

ANCIENT  LIGHTS, 

remedy  for  obstructing-  of,  142. 

action  may  hem  name  of  teiijiiit,  or  reversioner,  14J. 

declaration  for,  367, 

ANIMALS,  (see  titles  Dogs,   Cattle.) 

when  an  action  lies  for  injuries  to,  165,  6. 

■when  an  action  lies  for  an  injury  committed  by  them,  182.69,  70.' 

ANNUITY  DEED. 

replication  to  plea  that  there  is  no  memorial,  &c.  555. 

APPEARANCE  OF  DEFENDANT, 
how  described  in  a  plea,  410. 
in  person,  ib. 
byattcn-ncy,  410.  412. 

in  a  different  name  to  thnt  sued  by..  411,  412.  448,  9- 
by  a  feme  covert,  412.  449. 
by  an  infant,  412.  449. 
in  pleas  to  tiic  jurisdiction,  412.  449. 
must  be  in  name  of  only  one  attorney,  412. 

APPRENTICE. 

remedies  for  injuries  to  master's  right  in,  138, 

ARBITRAMENT,  (see  title    Avanl.) 

may  be  given  in  evidence  in  assumpsit,  472, 

in  case,  487. 
must  be  pleaded  in  trespass,  496. 

ARBITRATION  BOND. 

Replication  to  plea  of  nul  tiel  award,  Sec.  55j. 

ASSAULT  AND  BATTERY,  (see  title  Trespass.) 
action  for,  lies  atjainst  two  persons  jointly.  To. 

ASSIGNEE,  (see  titles  Parties  and   Bankrupts.) 

of  a  chose  in  action,  whe*  he  may  sue,  11.95. 

when  he  cannot  be  sued,  34,  5,  6. 
of  a  bankrupt,  (see  titles  Parties  ».nA  Bankruptcy,) 

when  assii::;-nees  should  sue  and  when  nut,  15.  10. 

provisional  assignee,  15. 

in  case  of  removal  of  an  assignee,  15, 

joinder  with  solvent  partner,^  15. 

oil  contract,  &c  made  since  bankruptcy,  15. 

joinder  in  action,  16. 

consequence  of  all  not  joining,  15. 

when  suit   does  not  abate,  15. 

how  to  sue,  201,  2. 

when  may  declare  in  their  own  right,  IS. 

when  the  bankrupt  may  sue  on  a  contract,  10.  \5,   16. 

in  trover,  &c.  149. 
when  assignees  may  be  sued,  4L 
of  aft  estate  in  land, 

when  he  may  sue  on  a  contract,  11. 

for  a  tort,  54. 
how  far  lial)le  for  a  c^itract,  36. 
for  a  tort,  77. 
of  a  term  of  years, 

how  to  declare  at  the  suit  of,  352.  347. 
how  to  declare  agauist,  3.53. 


INDEX.  655 

ASSIGNOR,  (see  title  Assignee,  and  Parties,) 

of  an  estate  in  land,  when  he  cannot  distrain,  Stc.  11. 

ASSUMPSIT,  ACTION  OF, 

parties  to,  wlio  to  be  plaintiff"  and  who  defendant,  (see  title  Parties.) 
why  so  called,  88. 

definition,  and  g-eneral  object  of  it,  88. 
history  of  it,  89. 
when  it  lies  in  general,  89  to  99- 

upon  simple  contracts,  not  under  seal,  89  to  £o. 
upon  contracts  implied,  90  to  93. 
where  there  has  been  no  contract,  90,  91.  99. 
tv'hen  the  only  remedy, 

apfainst  an  cNccutor  or  administrator  on  simple  contract,  93,  4. 
for  monev  payable  by  instalments  where  whole  not  due,  93. 
on  a  collateral  undertalung,  94. 
OTi  a  bill  or  note  where  tliere  is  no  privity,  94. 

on  an  award  not  for  payment  of  money  and  where  there  is  no  bond,  94. 
when  not  sustainable  and  exceptions,  94  to  99. 
not  on  a  deed  or  record,  94. 
not  where  there  originaiiy  was  a  valid  deed  or  record,  94- 

exceptions  where  deed  not  executed  by  defendant,  95. 

for  rent  where  there  is  no  demise,  95.  _  ,_^ 

where  there  has  been  a  deed  of  sei)arate  maintenance,  95, 
where  the  deed  is  invalid,  95. 
where  there  has  been  a  new  contract,  95. 
on  a  contract  in  consideration  of  forbearance,  95,  6. 
on  an  account  stated  between  partners,  96. 
where  there  has  been  a  fresh  a8:reement,  96. 
not  where  a  higher  security  has  been  since  taken,  96  to  99. 
exceptions  where  fresh  deed,  &.c.  invalid,  96. 
bond  for  rent  no  extinguishment,  97. 
not  a  mere  collateral  security,  97. 
lies  for  rent,  &c.  issuing  out  of  realty,  97,  8. 
lies  on  a  statute,  98. 

on  a  judgment  of  a  court  not  of  record,  98. 
when  not  by  a  partner  against  his  copartner,  98.  25,  6j  7. 
when  not  against  a  corporation,  98. 
not  in  case  of  illegal  distresses,  &c.  99. 
Pleadings,  &c.  in,  in  genera!, 
the  declaration,  99. 
pleas,  99,  100. 
judgment,  100. 
costs,  100 
Pleadings  in,  in  particular. 
Declaratiox. 

title  of  court,  (see  title  Declaration,)  261. 
of  term,  (see  title  Declaration,)  262  to  267. 
venue  in,  (see  title  Venue,)  273. 
commencement  of,  (see  title  Declaration,)  285.  288. 
cause  of  action,  statement  of,  in 
Special  counts,  292. 
1.  inducement, 

defined,  292. 
utility,  292,  3,  4. 
form  of,  293,  4. 
3.  considerations,  statement  of, 

when  to  be  stated,  295. 

how  to  be  stated  in  general,  295<  6. 


£5G  INDEX. 

ASSUMPSIT— (conmmeti') 

2.  considerations — (continued) 

several  descriptions  and  how  pleaded 

1.  executed,  296,  7. 

2.  executory,  297. 

3.  concurrent  or  mutual,  297. 

4.  continuing-,  298. 

defect  of  sufficient  consideration,  how  to  be  objected  to,  298" 

3.  contract,  statement  of 

how  to  be  stated,  14. 

to  be  stated  in  words  or  according'  to  leg-al  effect,  298,  9.  302; 

super  se  assumpsit  proper  in  all  cases,  299. 

by  andtowliom,  299- 

sufficient  to  shew  that  part  on  whicli  the  action  is  founded,  299. 

but  a  condition  precedent  or  matter  qualifying  must  be  slated,  301 

to  303- 
contract  in  ihe  alternative,  302. 
variances  what  fatal,  303  to  308. 
statement  under  a  scilicet,  3u8. 

4.  averments,  (see  title  Averments-) 

defined,  308. 

of  the  performance,  &.c.  of  a  condition  precedent,  309jto  319, 
not  necessary  wlien  consideration  was  executed,    lOQ. 
necessary  where  consideration  was  executory,  309 
when  necessary  in  case  of  mutual  conditions,  309,  310- 
g'eneral  rule  as  to  averments,  309  to  315- 
form  of  averment,  315. 
of  performance,  316. 
of  excuse  of  perf  irmance,  317. 
of  readiness  to  perform,  318. 
consequence  of  mistake,  319. 
of  the  defendant's  ?;o^ce  of  facts  alleged,  319. 
when  necessary,  320 
how  to  be  stated,  322. 
consequence  of  mistake,  322. 
of  a  request  on  defendant, 

when  necessary,  322. 
form  of  stating,  324. 
5.  breach,  (see  title  Breach.) 

necessary  to  be  stated,  325. 

how  in  case  of  a  mere  money  demand,  325. 

in  special  counts,  325. 

form  of, 

should  in  substance  accord  with  the  contract,  325.  78. 
what  sufficient,  326. 

whei-ethe  contract  was  in  disjunctive,  327. 
if  too  large  or  bad,  328,  9. 
injudicious  to  be  too  narrow,  329. 
should  be  certain  and  particular,  329,  330- 
se^'cral  breaches  when  they  may  be  assigned,  330. 
of  the  allegation  of  defendant's  fraudulent  intent,  331. 
insufficTency  of  breach  how  to  be  objected  to  and  when  fatal 
or  aided,  331,  2. 
6.  damages,  (see  title  Dunnages,) 

"■what  necessary  to  be  stated,  3.32.  _ 

damages  necessarily  incident  need  not,  332. 
but  special  damages  must,  332. 
too  abundant  a  statement  not  prejudicial,  333. 
how  to  be  stated,  333 
consequences  of  misstatement,  333. 
Common  counts,  333    to  343. 

geaeral  utility  of,  333,  4* 


INDEX.  6^^ 

ASSUMPSIT— ^continued.) 

Comvion  counts — {continual.) 

are  for  money  demands, 

tlie  indebitatus  assumpsit  count,  334,  5,  6,  T. 

the  Quantum  meruit,  335.  337. 

the  i^antam  valebant,  335.  337. 

tiie  account  stated,  336. 

common  breach,  336.  . 

history  as  to  these  counts,  336,  7- 

general  form  and  requisites  of,  337. 

wlien  relating  to  real  property,  338. 
when  rehiting  to  goods  cr  personal  properiy,  338,  9- 
when  relating  to  wort^  and. personal  services,  33y,  340 
when  relating  to  monies,  340. 
money  lent,  340. 
money  paid,  340. 
money  liad  and  received,  341. 
account  stated,  343. 
by  and  against  executors  and  administrators,  &c.  343. 
Joinder  of  several  counts  in,  390  to  397-     196  to  207. 

Pi.EAS    1^, 

to  the  jurisdiction,  (see  title  yurisdiction-) 
in  abatement,  (see  title  Abatem.ent.) 
in  bar,  (see  title  Pleas  in  bar  in  general.) 
analytical  table  of  defences,  461. 
the  several  pleas, 

general  issue  non  assumpsit  in  general,  465  to  469. 
form  of  it,  469. 

what  may  be  given  in  evidence  under  it,  469  to  47S. 
another  person  who  ought  to  sue,'470. 
infancy  of  defendant,  ib. 
lunacy,  ib. 
drunkenness,  ib. 
coverture,  ib. 
illegality,  ib. 
alien  enemy  plaintiff,  ib. 
statute  frauds,  ib. 
release l)e fore  breach,  471. 
bankruptcy  of  plaintiff,  471. 
coverture  of  plaintifl',  ib. 
payment,  472. 
accord  and  satisfaction,  ib- 
negotiable  security,  ib. 
foreign  attachment,  ib. 
arbitrament,  ib. 
judgment  recovered,  ib. 
higher  security,  ib. 
release  after  breach,  ib. 
better  to  plead  specially,  when,  472,  3.  475 
Special  plea  when  necessary, 

alien  enemy,  plaintifl,  473. 
outlawry,  plaintift",  ib. 
bankruptcy  of  defendant,  ib. 
insolvent  debtor  defendant,  ib. 
tender,  ib. 
set-off,  ib.  475. 
limit.ations,  statute  of,  ib. 
courts  of  conscience  acts  when,  474. 
when  at  liberty  to  plead  specially  and  advisable,    474,  5-  497,  f 
the  qvialities  of  pleas  in  bar,  (see  title  Fleas  in  bar.) 
ibe  forms  of  jileas  in  bar,  &c.  (see  title  Pkns  ,■?;  /';?'-  "" 
Vot..  1-  [61  ] 


&<S6  index: 

ASSUMPSIT— Ccon?*nwe(i.) 
Kepli&ations  to, 

1.  several  sorts, 

to-aplea  of  Infancy,  551. 
coverture,  ib. 
alien  enemy,  ib. 
insolvent  debtors  act,  55 J- 
illep  ality  in  the  contract,  ib- 
tender,  ib. 

accord  and  satisfaction,  55J. 
arbitrament,  ib. 
judgment  recovered,  &.c.  ib. 
release,  ib. 
set-otf,  ib. 

court  of  conscience,  554. 
statute  of  limitations,  ib. 

2.  forms  of,  (see  title  Jieplications  and  the  particular  /ieacls,)570  to  617. 

3.  qualities  of,  (see  title   JReplications  and  the  particular  heads,)  617  to 
rejoinders  in,  (see  title  /Rejoinders.)  {^626. 

ATTACHMENT  FOREIGN,  (see  title  Foreign  attachments.) 

ATTAINDER. 

plea  that  plaintiff  has  been  attainted  of  treason  or  felony,  43'G. 

ATTORNMENT. 

when  not  necessary  to  be  alleged  or  proved,  11. 

ATTORNEY,  (see  titles  Jgent,  Bailee  and  Servant.) 
Remedy  ngainst  for  misconduct, 

when  not  liable  on  a  promise  on  behalf  of  his  client,  24. 

assumpsit  against,  92. 

case  against,  138. 

trespass  against  for  irregular  process,  8cc.  184'. 

conclusion  of  declaration  against,  400. 
liow  and  ^vhen  to  plead  by,  410  to  412. 

what  pleas  to  be  pleaded  by,  449. 

in  name  of  only  one  attorney  and  not  several,  530 
plea  of  privilege  by,  when  aftidavit  not  necessary,  52,  3. 

AUCTIONEER. 

when  he  may  sue,  5. 

when  he  may  be  sued,  24,  5. 

AUTER  ACTION   PENDENT, 
plea  of  in  abatement,  443. 
in  bar,  443. 
replication  thereto,  443.  557, 

/VVERMENT. 

defined,  308. 

form  of,  315  to  319. 

in  a  declaration,  315- 

in  a  plea,  537,  8. 

in  a  replication,  61G. 
m  a  dcclai-ntion  in  assumpsit.  368  to  324. 

of  a  condition  precedent,  309  to  319. 

of  notice  to  defentlant,  &c.  319  to  32?. 

of  request,  322  to  324. 

AVOrVVRY,  (see  title  Eeple'vin.') 


INDEX  fi3|5 

AWARD. 

how  to  be  slated  in  a  replicalion,  551. 

BAIL. 

remedy  for  not  acceptin!?  of,  186.  137. 
wliat  bail  cannot  plead,  460. 

BAIL-BOND, 

debt  upon,  103. 

defence  to  action  upon,  how  to  be  taken  advantag-e  of,  479. 

replication  to  plea,  556. 

case  against  sheriff  for  not  assigning  of,  140. 

BAILEE. 

-when  he  may  sue,  48.  170. 

assumpsit  asrainst,  92- 

case  against,  134.  138. 

trespass  against,  when  it  lies  and  when  not,  170,  1,  2. 

BAILIFF,    (.see  title  Sheriff  and  Officer.) 

when  he  is  liable  to  be  sued,  7i.  185,  6. 
traverse  of  defendants  being  so  in  replevin,  560. 
when  not  in, trespass  to  land,  565. 

BANKRUPT,  C-see  titles  Parties,  Assignees  and  Joinder.) 
when  he  may  sue  on  a  contract,  10  ■  15,  16. 

cannot  sue  his  assignees  for  his  allowance,  16. 
when  he  may  be  sued  on  a  contract,  40,  1. 
wiien  he  may  sue  for  a  tort,  59,  60.  137. 
■when  he  may  be  sued  for  a  tort,  80,  1. 

form  of  action,  137. 
wife  of  (see  Baron  and  Feme,)  44. 
assignees  of,  when  to  join,  and  for  what  demands,  201,  2. 

BANKRUPTCY. 

of  the  plaintiff. 

pending  suit  when  it  does  not  abate  it,  15. 

when  it  may  and  should  be  given  in  evidence  and  not  pleaded,  471. 

in  debt  on  specialty  or  record  should  be  pleaded, 

in  case  or  trover,  490. 

]5uis  darrein  continuance, 635. 
of  the  defendant,  A7o. 

must  be  pleaded,  473. 

form  of  ttie  plea,  538. 

jnay  be  pleaded  generally  though  certificate  obtained  pending  actioi),  6o5 

when  a  bar  to  an  action  f)f  covenant,  483. 

of  husband,  how  far  it  discharges  his  wife,  44. 

BAR,  (see  title  Pleas  in  Bcr.) 

criterion  and  distinction  between  a  plea  in  bar  and  in  abatement,  445.  4"59: 

BARON  AND  FEME,  (see  titles  Parties,   Coverture.) 

when  they  may  ^ue  and  how  upon  a  contract,  17  to  23.  ^ 

w-hen  they  are  to  be  sued  and  liow  upon  contract,  42  to  45- 

when  they  may  sue  and  how  for  torts,  46. 

when  they  may  be  sued  for  torts  and  how,  81,  2. 

when  liusband  should  sue  with  or  without  liis  wife,  46,7. 

when  he  should  sue  alone  in  replevin,  62. 

when  may  join  or  sever  for  a  tort,  60  to  ^5- 

feme  covert  when  liable  for  a  tort,  65. 

plea  that  plaintiffs  suing  as  such  are  not  xnarrled,  441'- 

must  join,  in  plea  when,  543 


660  INDEX. 

BENEFICIAL  INTEREST,  (see  title  Cestui  que  Trusi ;. 

BILL  OF  EXCHANGE, 

when  debt  does  not  lie  upon,  94- 
delivery  in  siitisfactioii,  plea  of,  472- 

BONA  NOTABTLIA. 

plea  of  hnw  to  be  pleaded,  445. 
when  to  be  pleaded,  484'. 

BOND,  (see  title  DeeJ,  Parties  to  Action,) 

assignoi-  of  when  he  must  sue,  IL  95. 
assignee  of  when  he  may  sue,  11.  95. 
assumpsit  to  pay  it  on  new  consideration,  95, 
debt  vipoii,  103. 
profert  of,  348,  9. 

liOROUGH  ENGLISH. 

custom  as  to  pleading'  it,  220. 

BREACH,  (see  particulars  under  title  Assumpsit.) 
statement  of    it, 

in  a  declaistion, 

how  to  be  stated,  325  to  332. 
several  breaches  when  permitted,  330. 
consequences  of  mistake,  331,  2. 
common  breach  to  money  coimts,  336. 
in  debt,  359,  3bD. 
in  a  replication, 

when  it  must  be  stated,  555,  6.  598,  9. 

when  several  breaches  may  be  stated  in,  550.  599. 

iiliOKER. 

when  he  may  sue,  5. 
when  liable  to  be  sued,  25. 

.CAPTAIN, 

t:f  a  ship, 

when  he  may  sue  for  Sreig-ht,  &c.  5. 

for  seizure  of  ship,  12r,  8. 
when  he  is  liable  and  may  be  sued,  24-  27- 
how  to  be  sued  for  the  loss  of  goods,  &c.  24,  5. 
in  assumpsit,  92. 

in  case  when  preferable,  134,  5.  145- 
of  a  troop,  &;c.  when  liable,  23. 

CARRIAGES,  Negligent  driving  of. 
who  to  sue  for,  48,  9. 

who  to  be  sued  for  where  injury  committed  by  servant,  Gb5,  9. 
form  of  action  for, 

trespass  when  it  lies,  126,  7-  ISO- 
case  wlien  it  lies,  139. 
.  must  be  case  against  a  master  for  the  act  of  his  servant,  151.159. 
declaration  in  how  to  be  framed  in  ca.se,  127.  13^. 

j^ARHIER. 

liable  for  act  of  his  servant,  69. 

action  against  by  whom  to  be  brotight,  3- 

when  he  may  sue  a  stranger  for  injury  to  goods,  48 

■fbrrn  of  action  agaiifst, 

in  assumpsit,  92. 

in  case  when  preferable,  338.135. 


INDEX.  661 

CARRIER— {continued.) 
declaration  against, 

need  not  state  custom  of  the  realm,  219. 
statement  of  contract  when  not  necessary,  134,  5. 

CASE,  ACTION  OF, 

how  far  affected  by  the  nature  of  tlie  injury  in  general,  123  to  133. 
whether  forcible  or  not,  123  to  125. 
wlietber  immediate  or  consequential,  125  to  128. 
Icg-ality  of  the  original  act,  128. 
intent,"  129. 
exceptions,  130,  1. 

summary  of  the  leading  points  governing  form  of  action,  131,  2. 
why  so  called,  133.  83,  4,  5.    ' 
S-eneralapplicabiliiy  of  this  action,  lies,  133. 
at  common  law, 

for  nonfeasance,  misfeasance,  and  malfeasance,  134. 

defined,  134. 
for  breaches  of  what  fowfracfi',    and  when   preferable  to  assumpsit 
134,  5.  138. 
not  on  contracts  merely  for  payment  of  monev,  134. 
for  obstructing  a  way,  contrary  to  express  agreement,  134. 
lies  against  bailees,  &c.  134,  5. 
for   injuries  to  the  person,  136  to  138. 
to  the  absolute  rights, 

i7iischicvous  animals,  keeping  of,  136. 

when  trespass  lies,  ib. 
malicious  prosecutions,  136. 

when  trespass  lies,  137.  183  to  187. 
slander  verbal  and  written,  137. 
health  injin-ies  to,  137. 
refusing  to  accept  bail,  &.c.  137. 
against  surgeons,  agents,  &c.  137. 
to  the  relative  rights, 

criminal  convei'sation,  137- 
debauchiiig  daughtei-s,  138. 

trespass  lies,  2  New  liep.  476. 
enticing  away  servants,  &.c.  138. 
for  injuries  to  personal  property  and  brt-aciies  of  contract,  138  to  l41. 
case  proper  where  injury  eitiier  not  forcible    or   not  imme 

di.ite,  or  to  property  in  reversion,  158, 
against  attornies  and  bailees,  &c.  for  neglect,  Lc.  138. 

when  preferable  to  assumpsit,  138. 
breach  of  w-arranty,  139. 

deceitful  representations  of  another's  solvencv,   133. 
negligence  in  driving  carriages  or  navigating"  sliips,  139. 
distress  illegal,  139,    140- 
pound  breach  and  rescue  of  distress,  140. 
rescue  of  party  arrest-ed,  140- 
cscapes  or  not  arresting,   140,  1. 
false  returns,  ib. 

!iot  levying  under  a  fi.  fa.  &c.  140,  1. 
not  delivering  letters,   141. 

against  a  \\  Itness  for  not  obeying  a  subpccna,  141. 
copy-right  and  patents,  infringing  of,  141. 
reversionary  property,  141. 
for  injuries  to  real  property, 
corporeal, 

when  the  remedy  must  be  trespass,  141. 
for  nonfeasance,  &c.  must  be  case,  141. 
injury  not  committed  onplaintifl's  land,  141. 


0Q2  INDEX. 

QASE,  ACTION  Ol'~.(conttnucd.) 

where  plaintiff's  rig-ht  is  In  reversion,  141,  i, 
tiilie,  nc  t  carrying  away,  1-11. 
ancient  lights,  142. 
nuisances  to  houses,  land,    &c.  142. 
■watercourses,  injuries  to,  142. 
waste,  142. 

dilapidations  in  a  rectory,  &.c.  142- 
fences  not  repairing  of,  143. 
incorporeal, 

commons,  disturbance  of,  143. 
ways,  disturbance  of,  143. 
pews,  disturbance  of,  143. 
officers,  franchises,  markets,  &.c.  143.     , 
by  statutes, 

in  general,  143,  4- 

landlord  against  sheriff  not  paying  a  year's  rent,  144- 
hundred,  -ictions  against,  144. 
distresses  irregular,  144-  140. 

againsi  justices  wiiere  conviction  quashed,  144,  5. 
when  and  why  case  is  or  is  not  preferable  to  i.ther  actions,  145,  6.  lo4. 
the  pleadings,  judgment  and  costs  in,  in  general,  146,  7. 
pleadings,  kc.  in,  in  particular, 
"nECLAKATiON,  ^sce  particular  heads  of  injuries.) 

title  of  the  court  and  term,  (.see  title  Declaration,)  261  to  264 
venue  in,  (see  title  Venue.) 
commencement,  285  to  292. 

statement  of  the  matter  or  thing  affected,  362  to  364. 
of  the  plaintiff's  right  or  interest  thereto,  364  to  374. 
of  tiie  injury,  3/4-  to  385. 
of  the  dam.tpes,  385  to  390. 
conclusion,  297  to  400. 
pled-ges,  400 
several  counts  in,  390  to  397. 
I'LEAs  in, 

general  issue,  f<^rm  of  it,  4S6,  7- 

what  may  be  given  in  evidence  under  it,  486,  T 
must  plead  specially  truth  of  slander,  &.c.  487. 

fresh  puisuit,  in  actions  for  escape,  4S8,  9. 
wlien  advisable  fo  plead  specially,  489. 
statute  of  limitations  must  be  pleaded,  490. 
replications  in, 

when  de  injuria  proper  or  not,  559,  560. 

CATTLE,  (see  title  Dogs,  Animals.) 

Distinction  as  to  liability  for  injuries  committed  by, 

domestic  animals,  as  dogs,  &c.  scienter  material,  69. 

remedy  case,  69,  136. 
cows,  sheep,  &c.  for  trespassing  on  land,  trespass,  70 
animals  fer^e  naturae,  trespass,  &c.  70.  136. 

CASSETUR  BILLA  VEL  BREVE,  (see  title  Abatement.) 

when  it  need  not  be  entered  and  plaintiff  may  amend,  454 
when  it  must  be  entered  or  plaintiff  amend,  454. 
at  what  time  to  be  entered,  455.  443. 

CEPIT  IN  ALIO  LOCO,  (see  title  Replevin.) 
plea  of  in  replevin,  490. 
replications  to  when  proper,  560. 


INBEX.  66S 

CERTAINTY. 

defined,  236- 

degrees  of,  and  what  «e«essary  in  different  parts  of  pleadin.^,  236  to  241. 
the  words  "  certain,"  "  duly,"  "  lawfully,"  &c.  of  noavail,240,  I    260. 
what  necessary  in  a  declaration,  (see  title  Declaration,)  256  to  261. 

plea.  513  to  518- 

replication,  624. 

new  assignment,  ^see  title  Neiu  Asiignment.) 

CESTUI  QUE  TRUST,  5. 

when  he  can  or  cannot  sue,  546.  49.  66. 
in  ejectment,  49.  190. 

CHOSE  IN  ACTION 

when  assignee  of  cannot  sue,  10. 

assignor  or  his  executor  or  administrator  must  sue  on,  10. 

assignee  may  sue  on  a  new  promise  for  a  new  consideration,  and  how,  11,  ^5.. 

assignee  of  estate  in  real  property,  when  he  may  sue,  11. 

assignee  of  chose  in  action  when  he  cannot  be  sued,  34. 

estate  in  land,  when  he  may  be  sued,  35,  6. 

CIVIL  LAW. 

when  points  relating  to  need  not  be  stated  in  pleading,  220. 

CIVILITER    MORTUUS. 

■wife  when  liable  to  be  sued,  438. 

CLAIM  OF  CONUSANCE,  (see  title  Conwance.) 

CLOSE. 

meaning  of  the  term,  173,  4. 

■when  proper  in  pleading,  362. 

when  to  be  described  by  name  or  abuttals,  (see  title  Abuttals.) 

CO-EXECUTORS,   (see  title  Executors  and  Parties.) 

nonjoinder  of  one  as  plaintiH,  how  to  be  objected  to,  7.  13,  14. 
as  defendant,  how  to  be  objected  to,  33.  38.. 

COGNlSx\NCE,  (see  title  Replevin.) 

COLLATERAL  UNDERTAKING. 

assunipsit  the  proper  remedy  upon,  94. 
declaration  must  be  special,  339. 
debt  does  not  lie  upon,   106. 

COLOUR   IN  PLEADING. 

in  a  plea, 

defined,  shews  matter  to  the  court,  why  action  don't  He,  499.  501. 
implied  colour,  498,  9. 

infency,  coverture,  payment,  Sec.  are  instances,  499. 
in  trover,  &c.  499. 
express  colour, 

when  necessary  or  not,  500,  1,  2. 
m  trespass,  &c."where   defendant  justifies  under  a  demise,   S;o. 

500,  1. 
firm  and  requisites  of,  JOl. 
addition  of  unnecessarily,  only  surplusage,  50^ 
defect  in  or  omission  wlicQ  aided,  502,- •'"'>. 
not  travfrsabl/?,  501. 


664^  INDEX. 

COLOUR  IN  PLEADING,   {continuc<i.) 

in  :i  replication,  Sec.  not  necessary,  601.  500. 

the  insertion  of  it  will  not  vitiate,  GOl.  JOU. 

COMMAND,  (see  title  Bailiff.) 

traversable  in  replevin,   &.c.  560.  586.  » 

when  not  in  trespass  to  land,  566.  586. 
replication  to  de  injuria  is  insufficient,  581. 

COMMENCEMENT. 

of  a  declaration  in  assumpsit,  (see  title  Declaration,)  285  to  292. 

in  debt,  &c.  344. 
of  a  plea, 

in  abatement,  (see  title  Ahatevient,)  450. 

in  bar,  (see  title  Pleas  in  bar.) 
of  a  replication,  (see  title  Replication,)  572,  3,  4. 

COxMMON  BREACH,  (see  title  Breach.) 
in  a  declaration, 

in  assumpsit,  356. 

general  observations  upon,   336,  7. 
general  nature  and  requisites  of,  336,  7 
in  debt,  359. 
in  covenant,  361,  2. 
forms  of,  334,  5,    6. 

COMMON  COUNTS,  (see  title  Declarations.) 
in  assumpsit,  333  to  343. 
in  debt,  334,  5. 

COMMON  INFORMER,  (see  Penal  Statute.) 

COMMON  LAW  RIGHTS  AND  DUTIES. 

what  need  not  be  stated  in  pleading,  219. 

COMMON,   RIGHTS  OF. 

when  a  commoner  may  sue,  50, 
remedies  for  injuries  to,  143. 

when  case,  143.  175.  7,  8.   121. 
when  trespass,   143. 
declarations  for  obstructing  of,  367. 
ejectment  lies  to  recover  when,  188,  9. 
must  be  pleaded  in  trespass,  495. 
replication  to  plea  of,  568.  592,3. 
new  assig-nments  relating  to,  611,  612. 

COMMON,  TENANTS  IN,  (see  also  title  Partners.) 

when  they  may  join  or  sever  in  actions   by  them,  9. 
must  sever  in  avowry,  he.  and  how,  9.  543,  4. 
when  one  cannot  sue  his  co-tenant  on  a  contract,  25,  6. 
when  one  cuunot  sue  his  co-tenant  for  a  tort,  66. 

COMPANY,  (see  title  Corporation.) 

when  too  general  a  description  of  the  parties  to  the  suit,  256- 

COMPOSITION  DEED. 

when  trustees  cannot  sue,  11. 

CONCLUSION,  (see  titles  Z>ec/araf/o;!«',  Pleas,  Replications) 
of  a  declaration,  399,  400- 


INDEX.  665 

CONCLUSION— (conf/nuec/) 
of  a  plea, 

in  abatement,  445,  6.  450  to  452- 

in  bar,  535  to  540- 
of  a  replication,  572. 

when  it  should  be  to  the  country,  592; 
of  a  new  assignment,  612,  13. 

CONDITIONS  PRECEDENT. 

what  amounts  to,  and  averments  of  performance,  &c.  309  to  325. 
of  readiness  to  jierform,  and  excuse  of  performance,  310  to  325. 
in  debt,   351. 

CONFESSION  AND  AVOIDANCE,  (see  title  Replication.) 
defined,  599. 

admits  defendant's  infancy,  but  goods  necessaries,  599. 
admits  freeholder's  title,  but  shews  a  demise  from  him,  599. 
must  admit  the  jilea  in  terms  or  effect,  600. 
form  and  requisites  of,  600, 1. 

CONSCIENCE,  COURTS  OF,  (see  title  Courts.) 

CONSEQUENTIAL  INJURIES. 

what  so  considered,    125.  128. 

remedy  for  in  general,  case,  S;c.  122.  126,  7- 

dONSIDERATION. 

when  essential  to  validity  of  a  simple  contract,  295. 

wlien  not,  ib. 

when  not  of  a  deed,  351. 

must  state  consideration  of  deed  operating  under  statute  uses,  351- 

illegality  efiect  of,  296. 

when  must  be  pleaded  in  case  of  a  deed,  479. 
when  and  how  the  consideration  is  to  be  stated  in  declaration,  295,  6. 
in  assumpsit, 

executed,  296. 
executory,  297. 
concurrent,  297. 
continuing,  298. 
in  debt  or  covenant,   351. 
in  case  against  bailees,   &c.  368,  9. 
coQsequencesof  a  misstatement  of  it,  298. 
averment  of  performance  by  plaintiff  of  a  condition  precedent,  309 

CONSIGNOR  AND  CONSIGNEE, 
which  to  sue  a  carrier,  &c.  3. 
when  consignee  may  be  sued  for  freight,  35. 

CONSPIRACY. 

remedy  for,  136. 

CONSTABLES  AND  OTHER  OFFICERS, 
venue  in  actions  against  local,  277,  8. 
mav  plead  general  issue  and  give  special  matter  in  evidence,  496. 

CONSTRUCTION. 

of  pleading,  rules  of,  241.  [521.  241,  2. 

when  and  why  to  be  construed  most  strongly  against  the   party  pleading, 

CONTRA  FORM  AM  ST  ATUTI. 

when  thi^  allegation  is  necessarv,  and  consequences  of  mistake,  356,  7,  8,  9. 
Vol.  I.  C  62  ] 


66S  INDEX. 

GONTRA  PACEM, 

not  >o  be  inserted  in  case,  146. 

sliouid  be  inserted  in  trespass,  162,  3-  37S. 

omissio!!  aided,  unless  specially  demurred  to,  37S,  6. 

CONTRACT,  action  on,  (see  title  Parties.) 

remedy  for  breach  of,  by  action  on  tjfie   case,  134, 

how  to  be  st.ited  in  assumpsit,   (see  title  Jssujtipstt,)  298  to  308; 

how  !o  be  stated  in  debt,   vsee  title  Debt,)  351,  2. 

parties  to  actions  on,  (see  title  Parties.) 

CONUSANCE,  CLAIM  OF, 
defined,  403 

distinctior,  between  it,  and  a  plea  to  the  jurisdiction,  403; 
who  to  be  chnmed  by.  403 
general  points  reiati'ng-  to  it,  404. 

wliat  court  may  claim  it.  404  to  406. 

the  actions    in  which  it  is  claimable,  405. 

the  time  and  manner  of  claiminp^  it,  406  to  410. 
pleadings  and  prcoeeding^  thereon,  407  to  410. 

CONVERSION,  (.see  title  Trover,)  147,  8. 

COPYHOLD  AND  COPYHOLDER. 

purchaser  of,  how  to  declare  on  a  lease,  347. 

when  copyh  Ider  should  claim  ri^-ht  of  common,  &c.  by  custom,  56lV 

when  to  prescribe  under  the  lord,  561,  2. 

COPYRIGHT, 

remedy  for  injuries  to,  141. 
declaration  for,  378. 

CORPORATION. 

not  liable  to  be  sued  as  such  for  a  tort,  65,  6. 
when  not  liable  on  a  contract,  98.' 
assumpsit  against  don't  lie,  98. 
how  to  declare  in  case  at  the  suit  of,  368. 
must  plead  by  one  attorney,  530. 

COSTS.  ^       . 

how  far  they  depend  on  form  of  action,  86. 
in  assumpsit,  101. 

debt,   109. 

covenant,  116, 

detinue,   122. 
^  case,  147- 

■^^  trover,  157. 

replevin,  162. 

trespass,   187. 

ejectment,  193. 
•when  executor  not  liable  to  pay,  203. 
in  case  of  u  plea  in  abatement,  458. 
how  far  affected  by  a  special  plea,   503,   4. 
where  one  of  several  executors  acquitted,  33. 

COUNT. 

i)leas  in  abatement  to,  when  no  longer  pleadable,  438,  9. 

COUNTS. 

several,  (see  title  Declaration.) 

when  they  may  be  joined,  (see  title  joinder  in  Action,)  196  to  206,  7'. 


INDEX-  6$Z 

COVUT—l^(ontinued.) 

when  proper  to  be  inserted  in  a  deelaration,  (see  title  Several  Counts,) 
390  to  397. 

COUNTIES  PALATINE. 

how  far  reco.^nised  by  the  superior  courts,  223. 
are  superior  courts  as  to  hiying'  venue,  280,  1. 
pleas  to  jurisdiction  of,  430,  1. 

COUNTY  COURT. 

how  venue  to  be  laid  in,  280,  1.  428. 

pleas  and  objection  to  jurisdiction  of,  428,  9. 

several  pleas  not  allowed  in,  541. 

COUNTRY. 

when  and  how  pleas  conclude  to  it,  535,  6,  7. 
when  and  how  rtplicutions  conclude  to  it,  614,  5. 

COURTS. 

division  of  and  distinction  between  as  to  jurisdiction,  404,  5.  42?. 

COURTS,  INFERIOR,  (see  titles  Inferior  Courts  and  Jurisdictions.) 
how  f'ai'  noticed  without  pleading-  their  practice,  5«.c.  225,  6, 
how  defects  in  jurisdiction  to  be  objected  to,  42b,  9- 
'       how  venue  to  be  stated  in,  280,  1.    428. 
when  cannot  plead  several  pleas  in,  541. 

COURT  OF  CONSCIENCE. 

statutes,  &c  as  to,  wiien  or  not  to  be  pleaded,  474. 
replication  to,  554. 

COVENANT,  action  of. 

By  and  against  whom  to  be  brought,  (see  title  Parties^)  o,  4,  5.  10, 
When  it  lies  in  g'eneral,  109. 

on  any  deed,  109. 

upon  what  in  particular,  110,  11. 

on  leases  when  proper  and  against  whom,  (see  also  Parties,)  111. 

when  the  only  remedy  or  preferable,  112,  13,  14. 

when  it  does  "not  lie  or  not  preferable,  112-  114. 
when  not  against  a  devisee,  39, 
Pleadings,  judgment  and  costs  in,  in  general,  116,  17. 
Pleadings,  &c.  in,  in  particular. 

DECLARATION     IN, 

title  of  court  and  term,  261  to  264- 

venue  in,  (see  title  Venue-) 

commencement  of  declaration,  360,  1. 

inducement,  361.  346,  7- 

consideration  when  to  be  stated,  361.  351. 

tlie  deed  how  to  be  stated,  348. 

profert  thereof,  348  to  350. 

parts  of  the  deed,  361.  351. 

i-oference  to  deed  and  lessee's  entry,  <361. 

derivative  title  liow  stated,  361.  352,  3 

averments  of  phiinlifl's  performance,  8cc.  361.  315.  l^c. 

defendant's  breach,  (see  title  Assumpsit,)  361,  325. 

conclusion  of,  361. 

ad  damnum,  362. 

PLEAS   IN, 

1.  several  sorts,  482,  3. 

no  general  issue,  482.  . 

non  infregit  conventionem  a  bad  plea,  483. 

rien  en  arrere  a  bad  plea,    482. 

what  must  bepleadr.t  -pecially,  482,  3. 


«8$  INDEX. 

COVENANT,  action  oi— (continued.) 
PLEAS  IN —  continued  ) 

2.  qualities,  (see  Pleas  in  Bar,)  507  to  520. 

3.  form  of,  (see  Pleas  in  Bar,)  526  to  547. 

EEPLICATIONS   IN, 

3 .  several  sorts,  557. 

2.  forms,  (see  title  PcpHcations,)  in  570  to  617. 

3.  Qjialities,  (see  tiile  Replications,)  617  to  626. 
REJOINDERS  IN,  (sce  title  Bejoinders,)  627  to  629. 

CaVENANTS. 

miuual  and  independent,  310. 

dCj  etident  or  conditions  precedent,  .'311. 

mutual  conditions,  &.c.  to  be  perfonned  at  same  time,  311. 

joint  and  several  wlio  niay  sue  on,  4.  6. 

doa'di  of  one  of  seveial  parlies  when  to  be  averred,  7. 

for  the  benefit  of  a  strMnger  who  to  sue,  4,  5. 

made  by  an  agent  on  belialf  oi':*  tiiii-d  party,  24. 

what  covenant  assignee  will  Oe  subject  to,  34.  36,  40- 

COVERTURE.  * 

of  defendant, 

at  time  of  making'  contract, 

may  be  g-iven  iv,  evidence  in  assumpsit  under  g'eneral  issue,  470-  43?'- 

in  debt  on  specialty  under  non  est  factum,  479.  437. 
may  be  pleaded,  474 
must  be  pleaded  in  person,  412.  449. 
replication  to  it,  438,551.32. 
existingcoverture, 

must  be  pleaded  in  abatement,  437,  8.  470- 
must  be  in  person,  412-  449. 
how  plea  concludes,  450. 
cannot  be  pleaded  with  noti  est  factum,  &,c.  447- 
replication  to  it,  43S.  551.  32. 
of  plaintiff, 

when  it  must  be  pleaded  or  may  be  given  in  evidence,  436,  7-  471,  2. 

CRAVING  OYER,  (see  title  Oyer.) 

CRIMIN/VL  CONVERSATION. 

remedy  for  case  or  trespass,  137,  8.  164,  5.     2  New  Rep.  476. 

CUSTOMS. 

what  to  be  stated  in  pleading  and  what  not,  219,  220,  1.  293. 

CUSTOM-HOUSE  OFFICER, 
venue  in  action  against,  278. 

DAMAGES,  (see  title  Assumpsit  and  Ad  Davvmm.) 
statement  of  in  body  of  the  declaration, 
what  necessary  to  be  stated,  332. 
how  to  be  stated,  333. 
consequences  of  misstatement,  333. 
in  actions  for  torts, 
general  what,  385- 
special  being  what  has  really  taken  place,  385. 

must  be  stated  or  when  not  to  be  given  in  evidence,  386. 
must  be  tlie  legal  and  natural  consequence  of  the  injury,  388. 
must  be  stated  with  particularity,  389. 


INDEX.  669 

DAMAGES— (co«f?Hi/ff/-) 

statement  oi— {continued.') 

no  part   must   be   stated  to  have   arisen   after  commencement  of  the 
action,  390. 
at  the  end  of  the  declaration, 

in  general,  397  to  400. 

in  assumpsit,  99. 

in  debt,  360. 

in  debt  qui  tam,  360. 

in  covenant,  362. 

in  actions  by  husband  and  wife,  398. 

at  tiie  suit  of  an  executor,  assignee,  &c.  398. 

to  what  amount  to  be  stated,  398,  9. 

consequence  of  taking  a  verdict  for  more,  398,  9. 

DATE. 

when  material  and  not  to  be  departed  from  in  pleading,  622,  3. 

DAUGHTERS,  (see  Master  and  Servant.) 

remedy  for  debauching  of  or  enticing  away,  137,  8. 
trespass  lies  when,  165.  2  New  Rep.  476. 

DAYS  OF  WEEK,  ^c. 

statement  of  in  pleading,  221. 

DEATH,  (see  titles  Abatement,  Actio  Personaiis.) 

of  one  of  several  plaintiffs  or  defendants  does  not  abate  suit,  55.  30,  1. 

of  a  parcener,  effect  of,  10. 

of  v.-ife  or  husband,  effect  of,  21,  2. 

form  of  declai-aiion  in  rase  of,  7-  12.  37-  290,  1. 

plea  of  in  abatement,  435. 

DEBAUCHING    DAUGHTER,  (see  tides  Daughter  and  Master  and  Servant.) 

DEBET  AND  DETINET. 

when  proper  to  declare  in,  in  debt,  344. 
against  an  executor  for  rent,  353- 

DEBT,  ACTION  OF. 

parties  to,  who  to  be, (see  title  Parties.) 

definition  of,  100. 

history'  of,  89. 

when  it  lies  in  general, 

for  money  due  if  readily  reducible  to  a  certainty  whether  due  on, 
legal  liabilities,'  101,  2- 
simple  contracts,  101,  2. 
specialties,  101,  2,  3. 
records,  101.  103. 
statutes,  101.  104- 
in  the  detinet  for  goods,  101. 
when  the  peculiar  remedy  against  lessee,  105. 
when  advisable,  107. 
wjftenit  does  not  lie, 

not  for  unliquidated  damages,  unless  secured  by  a  penalty,  lOl.  105,  6. 
when  not  on  a  bill  or  note,  102.  106,  7.  94. 
not  agaiiisr  an  executor  on  simple  contract,  106.  93,  4. 
when  not  for  money  payable  by  instalments,  106.93,4- 
when  not  against  lessee,  106. 
not  on  a  collateral  contract,  IOC  94. 
when  not  material  that  plaintiff  should  prove  the  precise  sum  to  be    due,  107,  8. 
pleadings,  judgment  and  costs  in  general,  108,  9.  [344.  94- 


670  INDEX. 

DEBT,  ACTION  0¥  -   (conUmied.) 
Pleadings  in,  in  pailiciilar, 

DEC{v(M4A TioN  in,  343  to  360. 

ijeiicral  requisites  to  be  observed,  343-  248  to  261- 
title  oftlte  court  and  term  and  venue,  344  261  to  285. 
conimencement  stating  the  sum  demanded,  &c..o44- 

when  ill  the  debet  and  detinct  or  only  the  latter,  344. 
tause  of"  action, 

on  simple  contract  and  legalliabilities, 
how  contract  to  be  described,  344,  5. 

form  of  the  indebitatus  and  quantum  meruit  count,  344,  5,  C: 
on  specialties. 

when  inducement  of  title  necessary,  346,  7. 
consideration  when  not  necessary  to  be  stated,  346,  f. 
deed  and  time  and  place  of  making  it,  348,  9. 
profert  wlicn  necessary,  348  to  354. 
how  much  of  deed  to  he  stated.  350,  1. 
reference  to  deed,  and  lessee's  entry,  352. 
deri%  ative  title,  how  to  be  sliewn,  352,  5. 
averments  of  plaintiff's  performance,  &c.  353,  4. 
on  records, 

on  recognisances  and  judgments,  354- 
general  rule  not  imp.  acliable  in  pleading,  55^. 
how  to  declare  on,  354. 
what  variatice  fatal,  255. 
pi-ont  patet  per  vecordum  necessary,  356. 
oh  statutes, 

commencement  of  declaration  qui  tarn,  &c.  Sod. 
statement  of  tiie  statute,  356 
statement  ol'tiie  oiience,  356,  7,  8,  9. 

time  when  it  took  place,  (see  Fenue,)  35T 
place  wiiere,  276  280. 
^  conclusion  contra  fbrmam  statuti,  358,  9. 

per  qnod  actio  accrevit,  &.c.  359, 
breach,  (see  title  Assuvipsit,)  oo'J. 
conclusion,  360. 

Pi.EAS    IN, 

analytical  table  of  defences,  461,  2,  3. 
pleas  in,  in  general,  gene)  al issue  iv/ien  proper,  466 
in  debt  on  simi)le  contract  and  legal  liabilities,  476, 
nil  debet,  4~6. 
non  detinct,  4~6. 

statute  of  limitations  to  be  pleaded,  476. 
tender  and  set-ofl",  476. 
in  debt  on  specialty,  476. 
when  nil  debet,  proper,  477. 

on  a  lease,  477. 
for  an  escape,  477. 

on  ajudgment  against  an  executor  suggesting  devas- 
tavit, 477. 
when  not  and  tliat  plaintiff  should  demur,  478.  9. 
AVhen  7ion  est  factum,  proper,  478. 

\^  hat  may  be  given  in  evidence  under  it,  478,  9. 
when  the  plea  must  be  special,. 478,  9. 
in  debt  on  record, 

when  nil  debet  or  nul  tiel  record  proper,  480,  1. 
wlien  the  plea  must  be  special,  481. 
what  may  be  pleaded,  481- 


INDEX.  tfn 

^RBT— (continued.) 

PLEAS  IS -(continued.) 
in  debt  on  statute, 

what  plea  proper,  481. 
wliat  iiiusl  be  pleaded,  481,  2. 
qualities  of,  (see  title  Fteus  in  General.) 

if  noil  assumpsit  be  pleaded  it  is  a  nullity,  507 
Replica  ;  io.nS  in, 

1.  5e\e  al   descriptions, 
on  sin. pie  contract,  555. 
on  sjjcciahy,  555,  6. 

on  recoi'ds,  556. 
on  si;ijites,  557. 

2.  t'.iivis  ut',  (see  title  P/eas  in  Bar,)  526  to  546. 

3-  qualities  oi,  (see  title  Picas  in  liar,)  507  to  526. 

DECEIT. 

what  the  proper  remedy  for,  139. 

.DECLARATION,  (see  the  respective  actions.) 

definition  of,  is  a  statement  of  cause  of  comi)lalnt,  248. 
lat.  its  general  requisites  and  qualities, 

Isl-  should  correspond  with  the  process,  &.c.  and  liow  variance  to  be  object- 
ed to,  248,  9. 

1.  in  the  names  of  the  parties,  249,  250, 1. 

2.  in  the  number  of  the  parties,  252.  9. 

3.  in  the  character  in  which  the  i)arties  sue  or  are  sued,  2.53. 

4.  with  the  '-aiise  and  form  of  action  in  the  aflidavit  and  ac  etiam  of  the 

writ,  254,  5. 
2dly.  must  state  ;ill  circumstances  essential  to  the  support  of  action,  255. 
odly.  oftiie  ceili.inty  requisite  in  a  declaration,  256. 
1st.  as  to  \.\\e parties  to  the  suit,  256. 

2dly.  the  time  when  material  facts  tookplace,(see  title  Time,)257.2&0. 
3dly.  the  place  whe'e.  260. 
4thly.  in  other  circumsiances,  260,  1. 
2dly.  its  part  and  particulra*  requisites, 

1st.  the  title  of  tht  court  undterm,  261. 
of  what  term,  262- 
special  title  when  projier,  268. 
consequences  of  mistake,  265. 
.2dly.  venue,  (see  title  Venue,)  267  to  285. 
general  rul^s,  267  to  271- 
■when  it  is  lo.^al,  271  to  273. 
•when  it  is  transitory,  273. 
in  actions  upon  leases,  &c.  274  to  276, 
•when  local  by  statute,  276  to  279  see  also  3  Anstr.  871, 
mode  of  statinir  the  venue,  279  to  283. 
c  nsequcnces  of  mistake,  and  when  aided,  283  to  285. 
3dly,  the   cominencenient, 

1.  names  of  the  parties  and  character  or  right  in  which  thev  sue  br 

are  sued,  285. 
where  defendant  sued  by  wronc:  name,  286. 
where  plaintiiT  has  sued  by  wron^-  n:ime,  286. 

2.  mode  in  which  defendant  in  court,  285,  6. 

in  the   King's  Bench  by  bill,  [286,  7. 

•where  defendant  in  actual  or    supposed  custody  of  rnvshal, 

where  -defendant   in  custodv  of  sheriff,  287. 

in  the  King's  Bench  bv  or;t:in.^l,  288. 

in  the  Common  Picas',  288    290. 

summoned  or  attached  no  objection,  288,  9. 

in  the  Exchequer,  291. 


&f%  INDEX. 

DECLARATION— (con^'«KCf/.) 

3.  brief  reeital  of  the  form  of  action,  285.  28y. 

when  concise  and  use  of  it,  289,  290. 

4.  form  in  case  of  outlawry,  death,  &c.  290,  1. 

5.  by  and  against  infants,  assignees,  executors,  attornies,  &c.  2$t 
4thly.  The  cause  of  action,  292  to  362. 

In  actions  ex  contractu, 

m  assumpsit,  (see  the  particulars  under  title  Assumpsit,)  292. 

1.  special  counts,  statements  of, 

inducement,  {see  t'lile  Inducement,)  292. 
considerations,  (see  title   Consideration, _,  295. 
contract,  and  variances,  (see  t  tie  Contract  and  Vari- 
a\eriTients,  (see  title  Averments,)  SOU.     [«/jcc*,)298. 
breach,  (see  title  Breach,)  325. 
damages,  (see  title  Damages,)  332,  397,  8. 

2.  common  counts,  333 

in  debt,  (for  particulars  see  title  De6t,)  343. 
general  rules,  343. 

1.  on  simple  contr.icts,  and  legal  liabilities,  344  to  346. 

2.  on  specialties,  346  to  354. 

when  an  inducement  shewing  title    proper    or   not,  346, 

when  consideration  sliould  be  shown  or  not.  346,  7.     [7. 

the  contract  and  profert  in  cui-ia,  346. 

avernu  nts,  3t2-  354. 

breach  and  damages,  359,  360.  398. 

3.  on  records. 

sufficient  to   state    record,    without  other    circumstan- 
ces and  breach,  354  to  356. 

4.  on  statutes, 
commencement  qui  tarn,  &c.  356. 
statement  of  tiie  statute,  356,  7. 
statement  of  the  facts,  356,  7. 
averments,  357- 

conclusion  contra  formam  statuti,  358,  9. 
breach  non-payment,  how  framed,  359,  360. 
conclusion  ad  damnum,  when  improper,  359,  360. 
in  covenant,  360  to  362. 
In  actions  ex  delicto,  362  to  390. 

general  rule  as  to  mode  of  stating,  362  to  390. 
1st.  The  matter  or  thing  allected,  362. 
a  way,  362. 
tenement,  362. 
close,  362. 

personal  property,  certainty,  362,  3. 
prescriptions,  customs,  &c.  363. 
abutt.als  of  land,   363,  4. 
2dlv-  The  plaintiflf's  right  or  interest  in  such  tiling,  364. 
a  riglit  independent  of  any  particular  duty  of  defendant, 
public  or  general  right  not  to  be  stated,  364. 
particular  right  implied  by  law  not  to  be  stated,  364. 
particular  right  not  implied  by  law  must  be  stated,  364  to  36S- 
mode  of  stating  interest. 
'     in  person  absolute  or  relative,  365. 

in  personal  proi)erty  in  possession  or  reversion,  365. 
in  real  property,  corporeal  or  incorporeal,  365  to  368. 
in  possession,  365.  368. 
in  reversion,  367. 
a  right  founded  on  the  duty  of  defendant,  368. 
a  particular  duty, 

1.  founded  on  defendant's  contract,  express  or     implied, 
2i  on  his  particular  obligation,  369,  [363.  370. 


INDEX.  dra 

DECLARATION— (^conmued.) 

sheriflTs,  carriers,  innkeepers,  &c.  oG9.  571. 
to  repair  fences,  ways,  &c.  369. 
general  obligation  of  law  affecting  defendant,  370. 

for   not   reniovinij    a  nuisance  on   defendant's  land,  &c. 
370,  1. 
variance  in  statement,  consequence  of  it,  372.  374. 
wiien  omission  of  title  aided  t>y  plea,  365. 
odly.  The  injury  to  such  thing-,  374  to  3S5. 
nature  of  injuries,  374. 

with  or  without  force,  374.  123. 
immediate  or  only  consequential,  374.  125. 
malfeasance,  misfeasance,  and  nonfeasance,  374.  134, 
in  trespass,  374. 
in  case,  376. 

for  nonfeasance,  376. 
scienter  when  material,  376. 
defendant's  intent  or  motive,  377  to   380. 
the  injury  itself,  380. 

in  genei-al  how  to  be  stated,  380,  1. 
in  action  for  slander  or  libels,  381  to  383. 
the  time  when  committed,  383,4. 
the  place  where  committed,  384,  5. 
4thly.  The  damages, 

defined,  385. 
general,  385. 
special,  385  to  390. 
■when  to  be  stated,  386  to  390. 
how  to  be  stated,  389,  390. 
5thiy.  Of  several  counts  (see  title  Several  Counts,)  390  to  397 
6thly.  The  conclusion,  397  to  400. 
7thly.  Profert  and  pledges,  400,  1. 
Defects  in,  when  aided,  401. 
when  at  common  law, 

by  the  plea,  401,  2. 
by  the  verdict,  402. 
when  by  statute,  402. 

DEED,  (see  title   Delh-ery,  Escrow.) 

when  to  be  stated  by  defendant,  415,  6,  7- 

consequence  of  statement  of,  on  oyer,  420- 

misstatement  of  when  aided  by  oyer,  420. 

how  to  be  described  in  pleading,  348. 

to  be  stated  according  to  its  legal  operation,  351,  2.  302.  518. 

no  vmnecessary  part  to  be  stated,  352. 

profert  of,  (see   title  Pro/erf,)  348,  9. 

given  as  a  security  when  it  may  be  pleaded  or  given  in  evidence,  4,  2. 

DEED  OF  COMPOSITION. 

who  to  sue  in  case  of,  10,   11. 

DEFECT  OF  FENCES,  (see  title  Fences) 
who  to  be  sued  for,  71.  77- 
case  for  not  repairing  of,  143,  4. 

declaration  in,  369,  370. 
plea  in  bar  of,  in  replevin,  562. 
in  trespass,  495. 
replication  to  plea  of,  in  ti-espass,  5(37,  8. 

DEFENCE. 

defined,  412. 

statement  of  it  in  a  plea, 410.  414. 

Vof.,  r.  [  63  ] 


^^  INDEX 

DEFENCE— (con</-«i/a/.) 

statement  of — {continued.) 
form  of,  410  to  414. 
when  necessary,  411,  12,  13. 
half  defence  and  when  jiroper,  413. 
full  defence  and  when  proper,  413,  14. 
what  proper  in  a  plea  in  abatement,  449. 

in  bar,  530. 
defect  of  how  to  be  objected  to,  449. 

DEFENDANTS. 

who  to  be,  (see  title  Parties.) 

several,  (see  titles  Several  Defendants  and  Pleas) 

DE  INJURIA  ABSQUE  TALI  CAUSA,  (see  titles  Replications  tunei  Traverse.) 
when  proper  in  an  action  on  the  case,  559. 
not  proper  in    replevin,  560.  161. 
when  proper  or  not  in  trespass,  562  to  570.  578. 
when  in  the  plural  to  several  pleas  by  several  defendants,  574. 
when  sufficient  to  a  i)lea  under  ])rocess  of  courts  of  record,  577- 
efiect  of  it,  compels  defendant  to  prove  his  whole  plea,  578. 
when  allowed  or  not  in  general,  578  to  585. 
when  not  advisable,  584. 
form  ot  it,  585. 
how  to  be  objected  to,  585. 

DE  INJURIA  ABSQUE  RESIDUO  CAUSA,  (see  title  Replication.) 
when  necessary  or  proper,  581  to  585. 

DELIVERY   OF  DEED,  (see  titles  Escroii:,  Deed.) 
not  necessary  to  be  stated,  348. 
plea  that  it  was  delivered  as  an  escrow,  479. 

DEMISE. 

plea  of  giving  colour,  500,  1. 
replications  denying  it,  567. 

shewing  i   determined,  567. 

DEMURRERS, 

defined,  639. 

to  pleas  to  jurisdiction, 

lo  pleading  in  abatement, 

to  a  plea  in  abatement  need  not  be  special,  456. 

form  of  where  plea  is  properly  in  abatement,  ib. 
bow  mistake  aided,  ib. 

form  of  where  plea  concludes,  &c.  in  bar,  457. 
to  a  replication  in  abatement,  &C.  456. 
joinder  in  demurrer,  456,  7. 

on  argument  no  advantage  can  be  taken  of  defects  in  declaration,  457. 
judgment  on, 

for  plaintifT,  457. 
for  defendant,  457. 
costs,  458. 

To    DECLARATIONS,   PLEAS   IN  BAR,  REPLICA  TIONS,    &C. 

defined,  639. 
general  rules, 

when  advisable  to  demur  though  defective  in  substance,  639. 

special  doniurrt  r  for  want  of  form  why  permitted,  639. 

genera)  what,  639. 

when  proper  and  sufficient,  639 

special  when  necessary  or  advisable,  639- 


INDEX.  67^ 

DEMURRERS— (co«</n«ef/.) 

To   DECLARATIONS,   PLEAS  IN'    BAR,    REPLICATIONS,  &C. {continued.) 

•when  not  necessary  at  common  law,  640. 
operation  of  the  statute,  27  Eliz.  c.  5.  640. 
operation  of  the  statute,  4  Ann.  c.  16.  641, 
to  a  part  or  whole,  643. 

of  u  declaration  or  count,  643. 

when  only  to  demur  to   part  of  declaration,  643. 
may  demur  to  the  whole  in  case  of  misjoinder,  643. 
of  a  plea,  avowry,  or  replication,  &c. 

should  demur  to  the  whole,  643. 
exception  in  a  pica  of  set-ott",  643. 
in  general  the  ohjecttonmust  appear  on  the  face  of  pleadings,  644. 
when  it  need  not,  644.  287,  8. 
how  to  be  shewn  by  oyer,  &c.  644. 
insufficiency  of  bail-bond,  644. 

usury,  &.C.  must  be  pleaded  though  it  appear  on  the  face  of 
the  deed,  644. 
form  of  demurrer, 

no  precise  form  essential,  and  though  informal  sufficient,  644. 
no  demurrer  to  a  demurrer,  645. 

usual  form  of  demurrer  to  a  declaration  or  count,  &c.  645. 
to  a  plea  in  abatement,  645.  7. 
to  a  replication,  &.c.  645. 
usual  form  of  a  special  demurrer,  645,  6. 

must  particularize  the  objection  and  how,  645. 
conclusion  of,  64G,  7. 
ON  ARGUMENT  OF  DEMURRER,  judgment  will  be    against  party  whose   first 
pleading  was  bad  in  substance,  647. 
init  on  demurrer   to  a  plea  on  abatement  defendant   cannot  object  to  de- 

ckration,  647- 
rule  only  applies  to  defects  in  substance,  647. 

JOINDER   IN   DEMUUUER, 

when  the  phiintiff  may  add  it,  628. 
ibrm  of  it,  647,  8. 

to  a  demurrer  to  a  declaration,  648. 

to  a  (It-nmrrer  to  a  plea  in  abatement,  648. 

to  a  demurrer  to  a  replication  to  a  plea  in  abatement,  &c.  648. 
If  judgment  against  plaintiff,  when  he  may  commence  afresh  action.  195. 

DENIAL,  (see  title  Traverse.) 

DEPARTURE, 

delincd,  618,  19. 

Aviien  objected  to,  619. 

a  new  assiij^nnurnt  not  a  departure  and  why,  601,  2. 

objectionable  in  a  repliration,  618. 

what  amoimts  to  it,  619,  20. 

objectionable  in  a  rejoinder  and  instances,  620, 1. 

to  avoid  it  must  plead  all  defences  in  first  instance,  504,  5- 

what  supports  the  declaration  or  plea  not  a  departure;  621,  2. 

a  variation  in  imaiaterial  matter,  not  a  departure,  622,  3. 

how  to  be  objected  to,  623. 

DE  SON  TORT  DEMESNE,  (see  title  Be  Injuria.) 

DEVASTAVIT. 

declaration  against  executor  suggesting  it,  344. 


67-6  INDEX. 

DEVISEE,  (see  titles  Parties,   Assignees  and   Heirs.) 

when  be  may  sue  or  be  sued  upon  a  conlracl,  11.  14.  35.  39  HI 
vhen  covenant  does  not  lie  aj^ainst  him,  30. 
when  he  may  sue  or  be  sued  for  a  tort,  55.  77 ■ 
infant  devisee  cannot  pray  the  parol  to  demur,  .39. 
pleas  by,  485. 

DETINUE,  action  of, 

parties  to  it,  (see  title  Parties.) 

only  remedy  to  recover  a  cliattel  specifically,  \\7. 

1.  what  thing-  may  be  recovered  by  it,  117- 

2.  what  proijerty  tlie  plaintiff  nuist  liave,  118. 

3.  for  what  taking  or  detention  it  is  sustainable  and  against  whom,  119,  2C. 

4.  the  pleadhigs,  verdict  and  judgment  in  general,  IJOto  122 
declaration  in  how  to  describe  the  s^iiods  and  jjlainliit  's  property,  36;).  5. 
pleas  in,  484. 

DILAPIDATIONS,    (see  titles  Waste,  Landlord  and  Tenant.) 

action  for  ai  suit  of  succeeding-  rector  on  custom  of  realm,  142. 
action  for,  80. 

DILATORY  PLEAS,  (see  titles  Sham  Pleas,  Abatement,   and  Pleas  in  Bar.) 
wlien  affidavit  of  truth  necessary,  452. 

BJSTRESS. 

remedy  for  illegal  distress,  90, 1.  99.  139,  40. 
when  trespass  lies  or  not,  169.  ISO- 
justifications  imder  wlien  to  be  pleaded, 

for  rent  when  need  not  be]ileaded  in  trespass,  493,  4. 

but  when  advisable,  ib. 
for  tolls  must  be  pleaded,  494. 
damage-feasant  must  be  pleaded,  494. 
•when  distress  not  advisable,  146. 

DISTURBANCE. 

of  rights  of  common,  ways,  8tc.  143. 
declaration  for,  Stc.  367,  8. 

DIVISION. 

of  England,  what  taken  notice  of  by  the  courts,  222. 
of  pleading,  243,  4. 

DOGS,  (see  title  Animals.) 

liabiUty  for  keeping  of  when  mischievous,  69  to  71. 

form  of  action  for,  136. 

scienter  when  necessary  to  be  proved  or  not,  2,76. 

DRUNKENNESS. 

may  be  given  io  evidence  in  assumpsit  under  general  issue,  470 
in  debt,  479. 

DUPLICITY. 

in   pleading  in  general,  when  objectionable,  230. 

■when  may  have  several  counts,  390. 

in  a  plea  in  abatement,  446,  7. 

in  a  j)lea  in  bar,  (see  title  Picas  in  Bar,)  511, 

oi;!y  tlic  ground  of  special  demurrer,  513. 


INDEX.  ^^'" 


DURESS. 

may  be  given  in  evidence  in  assumpsit  under  general  issxie,  47q 
must  be  pleaded  specially  in  debt,  479. 
rci)lication  to  plea  of,  555. 

EASEMENTS. 

right  to  must  be  pleaded  specially  in  trespass,  49.). 

ECCLESIASTICAL  LAW. 

when  it  need  not  be  stated  in  pleading',  220. 

EJECTMENT. 

general  nature  of  the  action,  188. 
ibr  what  reul|)ropei-ty  it  lies,  188. 
what  title  necessary,  189. 

what  right  of  entry  requisite,  189.  191. 

lessor  of  plaintitTto  recover  on  strength  of  his  own  legal  title,  189. 
exception  to  this  rule  on  ground  of  estoppel,  kc.  190,  1 

actu.al  entry  when  not  necessary,  191,  2.  177. 
what  ou.ster  must  be  ]U-oved,  192. 
pleadings,  damages,  costs  and  judgments  in,  in  general,  192,  •*■ 

pleas  in,  497. 

ELECTION  of  form  of  action  or  remedv, 

when  tlie  phiintitt'  may  have  trespass  or  case,  127,  8. 
general  rules  and  choice  how  far  aflected  by,  207. 

1st.  tlie  nature  of  the  plaintifi's  right,  207,  8. 

2dly.  security  of  bail  in  the  action  and  the  process,  209. 

Sdly.  the  number  of  the  parties,  209,  10. 

4tidy.  the  number  of  the  causes  of  action  and  joinder  thei'cof,  21&- 

othly.  the  nature  of  the  defence  and  plea,  211. 

6thly.  the  venue,  212. 

7thly.  the  evidence,  213. 

8thly.  the  costs,  213. 

9thly.  tlie  judgment  and  execution, 215. 

lOth'lybail  in  error,  214. 
consequences  of  election  of  remedy,  214. 

ENTRY. 

when  essential  in  trespass,  176,  7. 

to  avoid  a  fine,  177.  191,  2- 
when  not  essential  in  ejectment,  191,  2. 
of  lessee,  statement  of  it,  352. 

EQUITY. 

matter  of  defence  in,  when  not  pleadable,  459,  66 

EQUITY    OF  REDEMPTION. 

not  assets  to  charge  heir  or  devisee  at  law,  39. 

ESCAPE. 

remedy  for,  if  on  mesne  process,  case,  140,  1. 

if  on  final  process,  debt  or  case,  140,  1- 
plea  to  action  for,  488,  9. 

aflTidavit  of  truth  of,  488. 
replications  in  action  for,  559,  60. 
new  assignments  in,  when  proper,  603. 

ESCROW. 

deliverv  of  a  deed  as  such  n^ed  not  but  may  be  pleaded,  47-' 


&7&  INDEX. 

ESTATE,  (see  7h!c.)  ' 

ESTOPPEL. 

•when  a  party  is  estopped,  575. 
■when  a  l")rnicr  judgrnent  iiot  an  estopnel,  19J. 
when  by  defendunl's  appearancf,  454 
pleadings  of,  ivquire  what  accuracy,  238. 
plea  of,  459. 

matter  of  est<'.ppel  must  be  relied  on  in  conclusion,  540. 
replications,  form  of, 

commencement  of  it,  57o. 
body  of  it,  575,  6. 

conclusion  to  rely  on  estoppel,  616,  17. 
demurrer  in  respect  of  it,  575,  6. 

EXCOMMUNICATION. 

of  pl.iintiO",  plea  of  in  ab.itement,  436 
how  the  plea  concludes,  450,  1. 
puis  darrein  continuance,  635. 

EXCUSE. 

matter  in  excuse  of  performance  l)ovv  to  be  stated  by  plalntift',  J17,  18. 
pleas  in  excuse  of  trespass,  495. 

EXECUTOR. 

when  to  sue  or  be  sued  and  bow,  (see  title  Parties.) 
wlien  he  cannot  sue  on  a  contract,  4.  11  to  14. 
when  he  may  sue  and  how,  12,  13,  14. 
in  case  of  liusband  and  wife  executor,  21.  2. 

when  lie  may  sue  for  a  tort,  ( .see  title  Jctio  Ftnonalii,  &c-)  56  to  59. 
in  replevin,  159. 
in  trespass,  167. 
of  suing' one  of  several  executors,  33. 
against  husband  and   ^\lfe  executor,  39. 
when  lie  maybe  sued  for  a  tort,  77  to  SO. 
not  on  a  penal  statute,  39. 
•  when  not  liable  to  pay  costs  and  why,  203- 
■joinder  in  action  by  and  against,  (see  title  joinder,)  202  to  206. 
wJien  he  should  sue  or  be  sued  as  sucii,  202  to  206. 
declarations  in  actions  by  or  against, 

at  suit  of  an  executor  in  debt,  &c.  291.  344. 
,  against  an  executor  de  son  torf,  <kc.  291. 

declaration  by  or  against  to  take  care  out  of  statute  limitation.''.,  343.  392. 
declaration  again.sV  suggesting  a  devastavit,  344. 
against  for  rent,  353. 
pleas  in  actions  by  or  against,  484,  5- 

several  executors  may  join  in  jjlea  and  consequence,  545,  6. 
in  actions  by  or  against  in  gcnei-al,  557,  8. 
replications  taking  judgment  of  assets  quando,  8^c.  548. 
de  son  tort  how  lie  may  reply,  623. 
how  to  reply  to  plea  of  judgments  outstanding,  625. 

FACTOR,  (sec  titles  Agent,  Bailee.) 
when  he  may  sue  on  contract,  5. 
when  may  sue  for  injuries  to  personal  property  in  his  possession,  48 

FALSE   AND  FALSELY. 

when  equivalent  to  the  word  maliciously,  235. 

FALSE  CHARACTER,  (see  title  Deceit.) 
what  the  proper  remedy  for,  159. 

< 


INDEX.  679 

FALSE  PLEA,  (see  title  Pleas  in  Bar.) 

consequence  of"  its  so  appearing,  420. 

FALSE  RETURN. 

remedy  for,  140,  1. 

FEME  COVERT,  (see  title  Baron  and  Feme  and  Coverture.) 

FE  NCES,  (see  title  Defect  of  Fences.) 

defect  of  who  to  be  sued  for,  71.  77. 
remedies  for,  142,  3,  4. 
declaration  for,  369,  70- 

plea  in  bar  of  defect  of  fences  in  replevin,  562. 
plea  in  trespass,  495. 
replication  to  plea  of  in  trespass,  567,  8. 

FEOFFMENT, 

how  to  be  pleaded,  226.  349. 

FERRIES. 

declarations  for  injuries  to,  368. 

FICTIONS  OF  LAW. 

how  far  used  in  pleading,  229, 30. 

FICTITIOUS  PLAINTIFF  OR  DEFENDANT. 
plea  of,  435.  441. 

FINDING. 

allegation  of,  in  trover  not  material  or  traversable,  147". 

FINE. 

covenant  on  the  warranty  in,  wife  may  be  sued  on,  43. 

FISH  AND  FISHERY. 

when  case  or  trespass  the  proper  remedy  for  injuries  to,  160.  \75. 
right  to  fish  in  arm  of  the  sea,  intended  by  law,' 587- 
new  assignment  relating  to  it,  607,  8. 

FIXTURES,  (see  titles  Freehold,  Trees.) 

FORCE  AND  FORCIBLE  INJURY,  (see  titles    Vi  ct  Armis,    Contra  Pace?n.y 
what  so  considered  in  law  and  \\'h;<t  not   122  to  125. 
actual  and  how  to  be  described,  125. 162. 
implied,  and  how  to  be  described,  122  to  125.16?. 
when  not  to  be  stated  in  a  plea,  486. 

FOREIGN  ATTACHMENT. 

may  be  s^iven  in  evidence  in  assumpsit,  472. 

must  be  pleaded  in  an  action  upon  a  specialty,  480 

FOREIGN  LAWS. 

when  to  be  pleaded,  221. 

FOREIGN  PLEA, 
what,  429. 
affidavit  of  truth  of,  452. 

FORM  OF  ACTION,  (see  title  Action.) 

misconceived  ple.i  of,  .und  consequences;  44  J  ^ 


680  INDEX. 

FORM  OF  PLEADING,  (sec  title  Fk-ading.^ 
when  no  precise  words  necessary,  235,  6. 
ought  to  be  observed  when  applicable  and  wliy,  235,  6.  85,  6. 

FORMER  RECOVERY. 

may  be  given  in  evidence  in  assumpsit  under  general  issue,  ^72- 

in  case  under  general  issue,  486. 
must  be  pleaded  in  trespass,  486.  496. 
replications  to  plea  of,  553. 
new  assignment  to,  603. 

FRAUD. 

plea  or  replication  of,  when  need  not  state  the  particulars,  553. 

FRAUDS,  Statute  of, 

need  not  but  may  be  pleaded  in  assumpsit,  470,  1. 

statement  of  observance  of  requisites  of,  when  necessary  or  not,  23/ 

FREEHOLD. 

when  trover  will  lie  for  an  injury  to,  (see  title  Trees,}  158. 
when  replevin  will  not  lie,  158. 

FREEHOLDER. 

when  to  prescribe,  561. 

FREIGHT. 

who  may  sue  for  it,  5. 
who  may  be  sued  for  it,  35. 

GJAME. 

property  therein,  and  remedies  relating  to,  166 

GAMING. 

may  be  given  in  evidence  in  assumpsit,  470- 
must  be  pleaded  in  an  action   on  a  deed,  479. 
replication  to  plea  of  in  assumpsit,  552. 
in  debt,  555. 

GAVELKIND. 

customs  when  not  to  be  stated  In  pleading,  220. 

GENERAL  CUSTOMS. 

need  not  nor  should  be  stated  in  pleading,  219,  20. 293. 

GENERAL  ISSUE,  (see  title  Pleas  in  Bar,  and  each  particular  action.) 
general  observations  relating  to,  465  to  468 
special  plea  amounting  to,  how  to  be  objected  to,  497,  8. 

GOODS. 

how  to  be  described  in  pleading,  260.  363. 

G^ODS   SOLD. 

assumpsit  for,  &c.  when  common  count  proper  or  not,  338,  9. 
when  the  declaration  must  be  special,  339. 

GUARANTY. 

assumpsit  upon  to  be  special,  339. 

GUARDIAN, 

wliento  declare  by,  291. 
■vhen  to  plead  by,  449. 


INDEX.  681 

HAD  AND  RECEIVED,  MONEY. 

assumpsit  or  debt  for  when  it  lies,  90,  1. 

when  for  money  obtained  wrong'fally,  90,  1. 
when  not  for  money  obtained  under  :i  distress,  90,  1.  99. 
when  it  lies  in  g'eneral,  340,  1,  2. 
count  for  in  general,  340  to  342. 
HEALTH. 

remedy  for  injuries  to,  124.  137. 

HEIR,  (see  title  Parties.) 
when  to  sue,  14. 
when  to  be  sued,  39,  40. 
when  he  may  sue  for  a  tort,  54. 

when  not  before  actual  entry,  177. 
when  he  may  be  sued  in  assumpsit,  96. 

in  debt,  103. 
how  to  declare  in  action  on  a  lease,  &c-  347. 
how  to  declare  at  suit  of,  352. 

against,  353. 
pleas  by,  485,  6. 
replication  in  actions  against,  559. 

HERIOT. 

when  a  general  avowry  for  is  or  is  not  sufficient,  491. 

HIGHER  SECURITY,  (see  title  Deed.) 

taking  of  when  a  bai-  to  an  action  of  assumpsit,  94  to  97. 

HIGHWAY  ACT. 

parties  acting  under,  when  may  plead  general  issue,  495. 

HUE  AND  CRY. 

remedy  on  statute,  144- 

case  for  not  receiving  examination,  137. 

HUSBAND  AND  WIFE,  (see  title  Baron  and  Femr,  and  Partkt.) 

IDIOT. 

who  to  plead  by,  529. 

ILLEGALITY  IN  CONSIDERATION  OR  CONTRACT. 

may  be  given  in  evidence  in  assumpsit  under  general  issue,  -176. 
must  be  pleaded  in  an  action  on  a  specialty,  479. 
rephcationto  plea  of  in  assumpsit,  552. 
in  debt,  555. 

IMMATERIAL  ISSUE,  (see  titles /;««?,  Repleader.) 

IMMATERIAL  TRAVERSE,  (see  titles  i?e;>//caf/oHff,  Traverse  and  P/-p!eaJer.) 

IMMEDIATE  INJURIES. 

what  so  considered  and  remedies,  125  to  128. 

IMPARLANCES. 

defined,  420,   1. 

when  usual  or  proper  In  an  issue,  420,  1. 

a  plea,  420  to  424. 
several  sorts, 

general  imparlance,  its  nature,  use,  &c.  421,  2. 
special  imparlance,  its  nature,  &c.  422,  3. 
general  special  imparlance,  its  nature,  Sec.  423,  4. 
Vol..   I.  [  64  3 


G82  INDEX. 

JMPAH  L  \NCES— (continued.) 

ai  luail  oi'  a  replication  when  proper,    570. 
at  head  of  a  plea  in  abatement,  447. 
consequences  of  mistake,  448. 

INCORPOREAL  PROPERTY. 

remedy  for  injuries  to,  143. 
when  ejectment  don't  lie,  188- 

INDEBITATUS  COUNT. 

in  assumpsit,  general  use  of,    333  to  345. 

form  of,  334,  5. 
in  debt,  345. 

INDENTURE,  (see  title  Deed.) 

INDUCEMENT,   (see  title  Assumpsit.) 
nature  ot'  in  a  declaration, 
in  assumpsit,  292. 

its  utility,  292.   295. 
form  and  requisites  of,  293,  4. 
in  debt  or  covenant,  347. 
in  case  for  slander,  365.  381. 
in  a  replication  containing  a  traverse,  595, 

INFANT  AND  INFANCY. 

executor  or  administrator  when  he  may  sue  or  be  sued,  13,  14.  39. 
when  liable  to  be  sued  for  a  tort,  65. 
declaration  by,  foi-m  of,  291. 

ag-ainst  account  staged,  don't  !ie,  343. 
plea  of  must  be  by  guardian,  412.   449. 

in  abatement,  438. 
infancy  need  not  be  pleaded  in  assumpsit,  470. 

"but  may  be  pleaded,  which  is  preferable,  474,  5. 

must  be  pleaded  in  debt,  &.C.  on  a  specialty,  479, 

of  plaintiti",  436. 

of  defendant,  438. 
replication  to  a  plea  of,  different  sorts,  551. 

of  infancy  to  a  plea  in  abatement,  32. 

INFERIOR  COURT,   (see  titles  Courts  &nd  yurisdktion.) 
pleas  of  their  jurisdiction,  427,  8. 
want  of  jurisdiction  how  to  be  objected  to,  428^ 

INFORMER,  (see  title  Penal  Statute.) 

INHABITANTS  OF  A  COUNTY, 
when  not  liable  to  be  sued,  66. 

INJURIES  EX  DELICTO, 

nature  of  and  distinctions  between  considered,  122  toJ33. 
how  to  be  stated,  380  to  385. 

INNKEEPER. 

when  liable  to  be  sued,  69. 
remedy  against,  139. 

INNUENDO. 

use  of  and  when  necessary,  382,  3. 

INSOLVENT  DEBTOR. 

assignees  of  when  to  sue,   16. 
when  to  be  sued,  42. 


INDEX.  683 

INSOLVENT    DEBTOR. 

de  en  ;e  of  must  be  pleaded,  478. 
replication  to,  552. 

taking- judgment  of  assets  in  future,  &c.  548, 

INTENT. 

wlicn  it  does  not  affect  the  form  of  action,    129. 
wlien  to  be  alleg-ed  in  pleading-,  376  to  380. 
how  to  be  stated,  379. 

INTEREST. 

when  recoverable  in  assumpsit,  91. 

wlien  not  on  count  for  money  had  and  received,  342. 

in  debt,  count  for  lies,  102. 

INTER  P,\RTES. 

when  a  person  not  party  to  a  deed  cannot  sue,  4,  5. 

ISSLJABLE  PLEAS. 

defined,  and  when  they  only  can  be  pleaded,  505,  C. 

ISSUE,  (see  title  Repleader.) 
defined,  629,  630. 

must  be  single,  but  may  put  in  issue  several  facts,  577    631. 
should  be  on  an  affirm-.'.ttve  and  nejjalive  and  exceptions,   630. 
should  be  on  a  material  point,  631,  2. 

consequences  of  an  immatt-rial  issue,  631,  2. 
immaterial  issue  defined,  631. 
an  informal  issue  aided  by  verdict,  but  not  an  immaterial  one,  631,  2. 
exceptions,  631,  2. 

JOINDER  IN  ACTIONS. 

of  plaintiffs  and  defendants,  (see  title  Parties.) 

of  f  )rms  )f  action, 

several  causes  of  .action  which  mayor  ought  to  be  joined,  196. 

of  forms  of  action, 

general  rules  as  to  joinder,  196,  7. 

what  actions  ex  contractu  may  be  joined,  197. 

wliat  actions  ex  delicto  may  be  joined,   198. 

actions  ex  contractu  with  those  ex  delicto  when  can't  be  joined,  199. 

wh-it  actions  of  different  forms  mav  be  joined,  199. 

misjoinder  wlien  no  objection  in  crim-nal  proce-'dings,  199. 
of  rights  of  action  or  liabilities,  (see  title  Declaration.) 
general  rule,  200 

by  and  against  a  surviving  partner,  200. 

by  and  against  husband  and  wife,  201. 
by  assignees  of  a  bankrupt,  201 

by  and  agiinst  executors  and  administrators,  202  to  206. 
consequences  of  misjoinder,  206,  7. 
of  several  counts,  and  misjoinders,  (see  title  i)ec/araf/on,)  390  to  397 

JOINDER  IN  DEMURRER,  (see  title  Demurrer) 

JOINT-TEN  aNTS,   (see  titles  Parties  and  Tenants  in  Common.) 
must  join  in  an  act:i)n  when  plaintiffs,  10. 
in  a  replevin,   159. 
in  an  avowry  or  cognisance,  543. 
when  they  ma}  be  sued,  66. 
can't  sue  each  other  in  trover  or  trespass,  155,  G.  170.  172.  ISO. 

JUDGE, 

party  acting  as,  -when  not  livable  to  be  sned,  6S,  6  T.  R.  449,  450. 


684  INDEX, 

JUDGMENTS, 

in  diilerent  actions,  (see  each  particular  action.) 

on  pleadings  in  abatement,  (see  titles  Abatement  and  Deinurrer,)  445,  6.  457,8. 

on  pleas  to  jurisdiction,  434. 

actions  upon,  how  restrained,  103,  4. 

declarations  ujjon,  354  to  356. 

plea  of  judijinent  recovered,  &c.  (see  title  Former  Recovery.) 

JURISDICTION,  (see  title  Venue.) 
pleas  relating  to, 

distuiction  between  a  plea  to  and  a  claim  of  conusance,  403. 
must  be  in  person  »nd  not  by  attorney,  412.  449. 
how  to  be  entitled,  424. 

want  of  jurisdiction  when  an  objection  on  g-eneral  issue,  426.  n.  (b). 
distinction  between  them  and  pleas  in  abaternent,  427. 
when  olyection  to  jurisdiction  to  be  pleaded,  427. 
injuries  out  of  tiie  realm,  427. 

when  the  defendant  may  plead  to  jurisdiction,  429  to  432. 
how  to  frame  the  plea  and  proceed,  431,  2,  3. 
how  to  conclude  plea,  450. 
affidavit  of  truth,  433. 
replications,  2v.c.  relating  to, 
how  to  replj',  433. 
demurrer  to  plea,  434. 
judgment  upon,  434. 

JUS  POSTLIMINII. 

our  law  when  similar,  177. 

JUSTICES  OF  THE  PEACE. 

remedy  against  when  trespass,  137. 

when  case,  144,  5. 
may  plead  general  issue,  496. 

KING.  ,.      ,     ,. 

what  matters  relating  to  need  not  be  stated  in  pleading,  217. 

LANDLORD  AND  TENANT,  (see  titles  Covenant,  Case,  Jient,  C'c) 
how  to  sue,  93. 

action  by,  against  sheriff  for  not  pajing  year's  rent,  144.  [36.  40 

when  lessee  is    liable  to  be  sued  and   how  notwithstanding  assignment,  34. 
under  lessee,  when  not  liable,  36. 

LAW. 

matter  of  not  traversable,  587 . 

LEAVE  OF  THE  COURT. 

whether  to  be  stated  in  a  declaration,  331. 
should  be  stated  in  a  second  plea,  &.c.  542,  3 

LEGACY, 

when  recoverable  at  law,  91. 

when  legatee  may  support  trespass,  &.c.  167- 

LEGAL  LIABILITY, 

assumpsit  upcni  it,  91,  2,  3. 
debt  upon  it,  102. 

statement  of  the  consideration  in  pleading,  ^95. 
the  promise  to  be  alleged,  299. 

LEGAL  OPERATION. 

facts  to  be  stated  according  to,  in  a  declaration,  302.  351. 
in  a  plea,  518.  351,  2. 


INDEX.  685 

LESSEE,  (see  title  Landlord  and  Tenant.) 

LIBEL,  (see  titles  Slander,  Case,  Innuendo.) 
action  for  lies    against  two,  73. 

LIBERUM  TENEMENTUM,  plea  of, 

when  advisable  to  plead  it  in  t-  espass,  494,  5. 

may  be  given  in  evidence  under  general  issue,  494,  5. 

replication  to, 

1.  denying  defendant's  title,  565. 

2.  stating  a  demise  from  defendant,  566. 

3.  stating  a  title  before  the  defendant's,  ib. 

4.  new  assigning  the  trespasses,  ib. 

when  necessary  (see  title  Wew  Assignments,)  606,  7- 

LICENSE, 

must  be  pleaded  in  trespass,  495. 
replication  denying  it,  56". 

stating  a  revocation,  &c.  567.  606. 

LIMITATIONS,  Statute  of. 

actions  within  what  time  to  be  brought, 

assumpsit,  six  years,  473. 

debt  on  simple  contract,  six  years,  476. 

on  specialties,  no  limitation,  but  payment  presumed  after  twenty 

covenant,  no  limitation,  [years,  480.. 

case,  (except  for  verbal  slander,)  six  years,  490. 
criminal  conversation,  six  years,  490. 
verbal  slander,  if  actionable  in  itself,  two  years  490.  ■ 

trover,  six  years,  490. 

trespass  to  personal  and  real  properly,  six  years,  496. 
to  persons,  four  years,  496. 

ejectment  within  tuenty  years  after  adverse  possession,  191. 
declaration  by  or  against  executors,  &c.  to  admit  of  evidence  to  take  ca'se 

of  statute,  2U4,  5.  343. 
plea  of,  m.ustbe  pleaded  in  assumpsit,    472- 

should  be  pleaded  in  debt  on  simple  contract,  476. 

in  debt,  on  specialty  plea  of  solvit  ad  or  post  diem,  480. 

in  an  action  on  the  case,  &c.  490. 

in  trover,  498. 

in  trespass,  490. 

when  plea  to  be  qualified  to  part  of  declaration,  .523. 

how  to  be  pleaded,  (see  forms    vol.  2.) 
replications  to,  wliat  proper,  554. 

in  case  of  a  bill  or  note,  622,  3. 

iri  trespass,  569.  576. 

if  bad  in  part  Is  bad  for  the  whole,  618. 

of  the  statute  to  a  plea  of  set-off".  555. 

LORDS'  ACT. 

actions  in  case  of,  42. 

discharge  under  a  bar  to  debt  on  the  judgment,  481. 

LUNACY. 

when  Itmatic  liable,  65. 
to  be  pleaded  by  attorney,  529. 

lunacy  may  be  given  in  evidrnce»  or  pleaded  in  assumpsit,  470.  474. 
in  debt  on  specialty,  479. 

MALFEASANCE, 
defined,  154. 


686  INDEX. 

MALICIOUS  PROSECUTION, 

of  a  civil  or  criminal  cliai-ge,  when  case  is  the  remedy,136,  7.  167. 
when  trespass  is  proper,  136,  7.  185  to  187. 

MARGIN, 

venue  in,  (see  title  Venue,)  267. 

MARINE  LAW, 

when  it  need  not  be  stated  in  pleading,  220. 

MASTER  AND  SERVANT,  (see  titles  Parties,  Agent,  Factor,  Servant.) 

when  the  master  or  the  servant  shoidd  sue  for  the  battery,  Sec.  of   sei'vant,  47. 
when  a  servant  cannot  sue,  48. 
wlien  the  master  is  liable  in  case,  68, 

in  trespass,  181- 
remedy  by  master  for  debauching-  or  beating  servant,  47. 

bj'  action  on  the  case,  1,38. 

of  trespass,  165,  2  New  Rep.  476. 
declaration  against  master  for  negligence  of  servant,  381. 

MESNE  PROFITS. 

trespass  for,  wlicn  advisable  and  proper,  188,  193. 

MILITIA  ACT. 

venue  in  actions  against  officers  acting  under,  279. 
officers  may  plead  general  issue,  4y6. 

MISCHIEVOUS    ANIMALS,  (see  titles  Animals,  Cattle,  Dogs.) 
when  trespass  or  case  for,  69,  70.  136. 

MISFEASANCE, 
defined,  134. 

MISJOINDER,  (see  titles  Parties,  Actiun,  joinder.) 

det'endajit  may  plead  it  in  abatement,   but  nov/  more  usual  to  demur,  444. 

defendant  may  demur  to  the  whole  declaration  in  case  of,  444. 

if  there  be  a  denmrrer  for  it,  a  nolle  prosequi  cannot  be  entered,  548. 

MISNOMER,    (see  titles  Jdate^neiit  and  Na7nes.) 
in  writ,  trespass  for,  185. 

how  aidefl  by  declaration  or  otherwise,  249,  250,  1.  256,  7. 

in  plaintiff's  name  and  how  aided,  440,  I. 

in  diifendant's  name  and  ho%v  aided,  440.  1, 
plea  of,  how  to  begin,  411,  12    448.451. 

whether  to  be  pleaded  in  person  or  by  attorney,  449- 

must  state  christian  and  surname,  445. 

may  plead  both  mistake  in  christian  and  sui'name  in  one  plea,  447. 

how  plea  concludes,  451. 
replication,  &.c,   to, 

when  plaintifT  may  amend  or  enter  a  cassetur,  454. 

replication  of  estoppel  by  defendant's  appearance,  454. 

how  to  conclude,  454,  5.  [<^'''^0 

qualities  and  forms  of  these  pleadings,  (see  titles  Abatement,  Replication, 

MODERATE  CORRECTION, 

plea  of,  492. 

replication  to,  shewing  excessive  battery,  605. 

MODO  ET  FORMA. 

what  is  put  iu  issue  by  these  words  in  a  plea,  463',  47C. 

in  a  replication,  59&. 


INDEX.  687 

MOLLTTER  MANUS  IMPOSUIT,  (see  title  Trespass.) 
plea  of  to  preserve  the  peace,  492. 
when  not  advisable  to  plead  specially,  503,  4. 

MONEY  COUNTS. 

when  projjer,  340  to  343. 

forms  of.  334  to  336 

had  and  received,  when  it  lies,  341,  2. 

MONEY  HAD  AND  RECEIVFD,  (see  title  Had  and  Received.) 
when  assumpsit  lies  for  money,  90,  1.  99.  341,  2. 
when  trover  lies  for  it,  149. 

MOTIVE,  (see  title  Jnterit.) 

MUTUAL  CONDITIONS. 

nature  and  effect  of,  309. 

NAMES,    (see  title  Misnomer.) 

not  necessary  to   repeat  them  ;  mav  say,  •'  the  said  plaintiffs,"  or  "  defend- 
ants," &c.  256. 
of  third  persons,   how  to  be  stated,  &c.  257". 
consequences  of  mistake  in  placing'  of  it,  ^57. 

NEGATIVE   PREGNANT. 

instances  of,  (see  title  Traverse,)  518,  19 
what  amounts  to,  in  a  traverse,  586,  7. 

NE  UNQUES  EXECUTOR  OR  ADMINISTRATOR, 
plea  of,  484,  5. 
replication  to  it,  557' 

NEW  ASSIGNMENTS. 

distinction  between  it  and  a  replication,  601. 

and  a  departure,  601,  2. 
nature  and  use  of  it,  to  avoid  an  evasive  plea,  he-  €01,  2. 
what  matters  may  be  new  assigned,  602. 
must  be  consistent  with  the  declaration,  602.  612- 
wlicn  the  plaintiff"  may  traverse  the  plea  and  also  new  assign,  60-. 
wlien  the  plaintiff^  should  merely  new  assit;'n,  602. 
in  what  cases  it  may  be  made  and  is  necessary, 
in  actions  ex  contractu,  602,  3. 
not  in  replevin,  602. 
in  actions  on  the  case,  603. 
in  trespass  to  persons,  604. 

to  personal  pr'iperty,  605. 
to  real  property,  606  to  610. 
replications  in  the  nature  of,  609. 
costs  relating-  to,  609. 
forms  of,  two  modes  of  introducing'  tlie  matter  new  assigned,  610. 

1.  where  tlie  phiintiff"  denies  the  plea  and  also  new  assigns,  610. 
2  where  the  plaintiffT  merely  new  assigns,  610. 
body  of  and  retpiisites  as  to  certainty,  &c.  611. 

must  sliew  the  other  trespasses  or  matter  complained  of,  ib. 
when  the  new  assignment  relates  to  j^lace,  611. 

to  time.  See.  611. 
must  be  of  matrrial  matter,  612. 
must  be  of  similar  trespasses  us  in  declaration,  612. 

as  those  pleaded  to,   612. 


688  INDEX. 

NEW  ASSIGNMENT— (rof/«!/e(/.) 
conclusion  of,  612. 

prayer  of  jiirlg'ment  unnecessary,  613. 
pleas  upon  new  assig-nment,  613. 

defendant  miiy  plead  precisely  as  to  a  declaration,  61S. 

may  plead  double,  61.3. 
not  necessary  to  plead  de  novo  what  was  covered  by  the  plea,  613,  14. 
can't  plead  that  the  trespasses  are  the  same,  &c.  614. 
I'eplications  to  pleas  to  new  assignment,  614. 

NIL  DEBET,  (see  title  Debt,  Pleas  in.) 

when  a  proper  plea  in  debt,  476,  7,  3. 

an  improper  plea  in  assumpsit,  and  plaintiff  may  sign  judgment,  507. 

when  best  to  demur,  507. 

NIL  HA.BUIT,  (see  t\i\e  Estoppel.) 

whon  no  plea,  347,  8.  477.  575. 
in  replevin,  bad,  561. 
replication  or  demurrer  to  it,  575. 

NOLLE  PROSEQUI. 

when  it  m.ny  or  not  be  entered  against  one  of  several  defendants,  32,  3-  546. 
when  it  may  be  entered  to  part  or  whole  of  cause  of  action,  548.  {|548. 

not  in  case  of  misjoinder,  after  demurrer,  548. 

NON  ASSUMPSIT,  (see  title  Assumpsit,  Pleas  in.) 

an  improper  plea  in  debt,  and  plaintiff  may  sign  judgment,  507. 

NON  CEPIT,   (see  title  Replevin,  Pleas  in.) 
what  it  puts  in  issue,  490.  159. 
avowry  or  cognisance  for  a  return,  490. 
when  not  proper,  491. 

NON  DAMNIFICATUS. 

when  a  good  plea^  480. 
replication  to  it,  556. 

NON  DETlNET. 

when  a  Jsroper  plea  in  debt,  476. 

in  detinue,  484. 

NON  EST  FACTUM,   (see   title  Dedt,  Covenant,  Pleas  in.) 

when  proper  and  what  may  be  given  in  evidence  under  it,  478,  9,  480- 

NONFEASANCE, 
defined,  134. 


NON  INFREGIT  GONVENTIONEM- 
a  bad  plea,  515. 

NONJOINDER  OF  A  PARTY,  (see  title  Parties.) 
when  to  be  pleaded  in   abatement,  441,  2. 
when  the  ground  of  nonsuit,  442. 
of  assignees  or  e'xecutors,  ib. 
when  the  plalntiiT  cannot  amend,  454. 
how  to  be  pleaded  in  abatement,  441. 

NOT  GUILTY,  (see  titles  Caie,  Trover,  Trespass,  and  Debt,  Pleas  in.) 


INDEX. 

NOTICE. 

when  the  phiintifr  or  defenclaiit  must  aver  it,  3VJ: 
how  to  be  alleg'etl,  322. 
consequences  ot"  omission,  322. 

NOVEL  ASSIGNMENT,  (see  title  Ke-.o  Assignment.) 

NUISANCE. 

who  may  sue  for  it,  54,  5. 

who  may  be  suetl,  77. 

remedy  for  when  case  or  trespass,  136.  142. 

NUL  TIEL  RECORD,  {hcq  ^\t\Q  Debt,  Picas  in.) 
when  a  proper  plea,  480. 

conchision  of,  537. 
replication  to  a  plea  statin.?  a  record,  55&,  7. 

form  of  it,  571,  2.' 

to  a  plea  denying*  a  record,  5/2. 

OFFICER,  (see  title  Sheriff,  Venue,  C-c), 

when  liable  to   an  action  of  ti'espass,  S;c.  185,  6. 

OFFICES. 

declaration  for  disturbance  of,  368. 

ORDER  OF  PLEADING.  -, 

what  to  be  observed  and  consequences  of  non-observance,  42o. 

OUSTER. 

what  amounts  to  in  general,  192. 

in  case  of  tenants  In  common,  180. 192. 

OUTLAWRY. 

title  of  declaration  where  one  defendant  has  been  Outlawed,  3&?', 

form  of  declaration  in  case  of,  290. 

of  plaintiff  when  to  be  pleaded,  436.  473.  635. 

in  abatement  or  bar,  435,  6. 
two  outlawries  cannot  be  pleaded,  447- 

©NERARI  NON. 

when  proper  in  a  plea,  531, 

OWNER  OF  SHIP. 

when  he  may  sue,  5. 

when  he  may  be  sued,  23,  24. 

OYER. 

defined,  414. 

form  of  cravinj^  it  in  a  nlea,  410,  11. 

when  it  may  be  craved,  414. 

of  a  deed  necessarily  stated  with  a  profert,  4l<. 

not  of  a  deed  unnecessarilv  stated,  415.  350. 

notof  the  writ,  415.  249.438,9, 

consequence  of  demanding,  439. 

not  of  a  deed  not  pleaded  with  a  profert,  415. 
when  defect  in  craving  of  will  be  aided,  415.  , 

when  oyer  must  be  craved  in  order  to  demur,  8vC.  415,  IS; 
when  proper,  416. 
denial  of  oyer  when  error,  417- 
bow  to  plead  after  it,  417. 
when  plaintifl"  may  pray  an  enrolment,  417 
Vol.  1.  '  [  ^5  3 


mo  INIJEZ. 

OYER- {coniinucd.) 

how  to  entitle  the  plea  in  case  of  enrolment,  417,  IS. 

the  whole  of  the  deed  to  be  set  forth  and  consequence  of  not  doing  so,  418^ 

how  much  of  anotiier  deed,  419. 

when  sufficient  to  crave  oyer  of,  and  state  only  condition  of  bond,  419,  20. 

consequences  of  the  deed  being  stated,  420. 

PARCENERS. 

when  they  ought  to  join  as  plaintiff's,  10. 
how  to  be  sued,  29. 
avowries  by,  543. 

PARENT, 

when  he  may  sue  for  a  tort  to  the  person  of  his  child,  47. 
when  advisable  to  proceed  in  name  of  the  child,  47. 

PARLIAMENT. 

what  matters  relatingto  need  not  be  stated  in  pleading,  217- 

PARTIES  TO  ACTIONS, 
who  to  be, 
general  rule,  1. 

IN    ACTIBNS  EX  CONTRACTU,  1   tO  45. 

Plaintiffs,  who  may  or  should  be,  3 

between  ori^/wo/ parties,  and  with  reference  to  their  interest,  3  to  5,. 
by  consignee  of  goods,  3. 
when  a  joint  or  seve:  al  covenant,  3,  4. 
legal  or  beneficial  interest,  3  to  5. 
upon  a  deed  inter  partes,  4. 

when  by  an  agent,  factor,  broker,  auctioneer,  he.  5. 
with  reference  to  the  number  of  plaintiffs,  5  to  10. 
who  must  join  or  may  sue  severally,  5,  6. 
nonjoinder  of  a  plaintiff  how  to  be  objected  to,  7,  8.  13. 
w  lu)  may  or  canwot  join,  8  to  10. 

misjoinder  of  several  plaintiffs  how  to  be  objected  to,  8,  9. 
when   the  interest  in  the  contract  has  heen  assigned,  10  to  11. 
in  the  case  of  personal  contracts  assignor  must  sue,  10. 
unless  upon  an  express  promise  to  assignee   on   new   con; 

sidcration,  10. 
in  case  of  covenant  running  with  land,  11. 
assignees  of  bankrupt  or  insolvent  debtor,  11. 
trustee  under  composition  deed,  11. 
when  one  of  several  partners,  obligees,  &.c.  is  dead,  11  to  12. 
action  must  be  in  name  of  survivor,  11  to  12. 
when  in  name  of  executor  of  deceased  party,  12. 
in  case  oi  death  of  all  partners  covenantees,  &.c.  12  to  15. 
in  case  of  a  personal  contract,  12  to  13. 

must  be  brouglit  by   executor  or  administrator  of 

surviving  partner,  8cc.  12. 
all  executors  must  join,  13. 
nonjoinder  Ivow  to  be  objected  to,  13. 
what  demands  he  may  sue  for  as  executor,  13,  14. 
executor  of  executor  may  sue,  14.. 
but  not  administrator  of  executor   or  executor  of 

administrator,  14. 
not  an  infant  executor,  14. 
in  case  of  a  covenant  running  with  land,  18.  14. 
when  by  executor,  heir  or  devisee,  13,  14. 
in  case  of  bankruptcy,  15,  16. 

when  assignees  may  sue  and  how,  15,  16. 


INDEX.  cyi 

PARTIES  TO  ACTIONS— (con//nm/.) 

IN'  ACTIONS  EX  CONTRACTU — (continued-) 

Plaintiffs  who  to  be — {continued   )  ' 

in  case  of  bankruptcy — {continued.) 

when  they  cannot  sue,  15,  16.  11. 
what  demands  they  may  sue  for  or  join,  15,  16. 
wlien  the  solvent  partner  must  join,  15. 
when  the  bankrupt  may  sue,  15, 16. 10. 
in  case  of  an  insolvent  debtor,  16,  (in  torts,  59) 
in  case  oi'  marriage,  \7  to  23,  (in  torts,  6(J.) 

wife  cannot  sue  alone  unless  husband  be  transported,  17. 
must  join  on  contracts  made  before  maiTiage,   17,  18. 
or  when  wife  is  executrix,  18. 
unless  on  express  contract  to  husband  on  new  con- 
sideration, 18. 
wife  when  she  may  join  on  personal  contracts,  18,  19. 

for  rent,  &c.  of  her  land  she  may  join,  19,  20. 
if  husband  survive  when  he  may  sue,  20,  21. 
if  wife  survive  when  she  may  sue,  21,  22. 
consequences  of  mistake,  22. 
Defendants  who  to  be, 

between  the  original  parties  and  with  reference  to  liability,  23. 
captain  of  a  troop,  owner  of  a  ship,  he  22. 
attorney  or  ag-ent  wlien  liable,  24,  5. 
against  partners,  tenants  in  common,  &c.  25. 
with  reference  to  number  of  defendants  and  who  must  be  join- 
ed, 28. 
mode  of  taking  advantage  of  omission,   29. 
who  may  be  joined,  31. 
and  consequences  of  objection, 
general  observations,  33  to  34. 
Incase    of  change  of   credit  and   covenants    running  with    the 

land,  34. 
where  one  of  several  obligors  is  dead,  37. 
in  case  of  executors,  administrators,  heirs  and  devisees,  37. 
in  case  of  bankruptcy,  40. 
in  case  of  insolvency,  42. 
incase  of  marriage,  42  to  45. 

iN  ACTIONS    EX  DELICTO,  45    tO  83. 

Plaintiffs  who  to  be, 

witii  reference  to  the  plaintiff's  interest,  45, 
must  be  legal  ov/ner,  45,  6. 
for  injuries  to  the  person,  46. 

personal  property,  48. 
real  property,  49. 
with  reference  to  the  numlter  of  plaintiffs, 

when  they  must  or  may  join  or  sever,  51  to  So. 
consequences  of  too  many  or  too  few,  53, 4- 
wliere  tiie  interest  in  the  property  lias  been  assigned,  54': 
wlien  one  of  several  parties  is  dead,  55. 
where  a  sole  party  injured  is  dead,  56  to  59. 
in  case  of  bankruptcy,  59. 
in  case  of  marriage,  60  to  65. 
Defendants  who  to  be, 

who  liable  to  be  sued  for  torts,  63. 
infants,  65- 
feme  coverts,  65. 
corporations  not,  65,  6. 
a  judge,  &c.  66.  6  T  R  449,  SO. 
inhabitants  of  a  county,  66. 
trustee,  66 

joint-tenants  and  tenants  in  common,  66. 
agents,  67.  69. 


<m  INDEX. 

PARTIES  TO  ACTIONS- (^contmued.) 

IN  ACTIONS   -EX  T>TiJ.icro— (continued.) 
Dtfftndantx  who  to  be — {continued) 

>vho  liable  to  be  sued  tor  toi-ts — '^cont-inwd.") 
master  or  prmci])ul,  6(>. 
for  animals,  G?,  ?(»,  1,  2. 
for  real  property   71. 
who  may  be  jointly  sued  and  who  r,oi, 

and  consequences  of  mistake,  73  to  77- 
•where  tlie  interest  in  the  land  lias  been  a.ssiiriied,  77. 
ill  case  of  the  deatl\  (jfthe  wroiit^  doer,  77 

in  case  of  the  bankruptcy  or  iiisoU'ency  of  tlic  wronc:  doci-,  80, 1. 
in  «5ase  of  marriag-e,  81,  2- 

STATEMENT    OF,    WITH    WHAV    CERTAINTY   IN    A    DECLAUATlO  N,  &.C.  256,  7- 

PARTNERS,  (see  title  Parties.) 

when  iliey  must  or  need  not  sue  jointly,  26,  7,8- 

when  they  may  sue  each  other,  25  to  o-l-.  96.  'J8. 

how  t')  sue  in  case  of  bankruptcy,  15. 

■when  survivor  may  include   a  demand  on  his  own  rij^ht,  12. 

wiien  survivor  need  not  state  death  of  his  pai'tner,    12-  c>7. 

covenant  betwec-n,  when  of  no  avail  asf'ainst  a  ci'editor,  34. 

when  one  is  discharged  by  the  acl  of  the  other,  35. 

what  demands  may  be  included  or  set  off  in  action  against  survivor,  ST". 

PART  PERFORMANCE,  (see  title  Performance.) 
when  sufficient  to  entitle  a  parly  to  sue,  31 1. 

PATENT. 

remedy  for  injuries  to  jnfring'emcnt  of,  141. 

rAWNBKDKER. 

when  be  may  sue  for  torts  to  property  in  Lis  possession,  48. 

PAYMENT. 

may  be  g-iven  in  evidence  in  assunnpsit  under  general  issue,  471,  1*. 

may  be  pleaded,  474,  5. 

must  be  pleaded  in  action  ou  a  specialty  and  how,4£0. 

PENAL  ACTION,  AND  STATUTE,  (see  title  Statute.) 
action  of  when  it  may  be  ajjainst  several,  73,  4. 
T^  hen  action  lies,  105. 
who  may  sue  in  it,  105.  145. 
venue  in  actions  on,  276.  280.    3  Anslr.  871. 
declarutitin  on,  356  to  360. 
no  damages  to  be  stated  in,.  397,  8 
pleas  in,  pendency  of  a  prior  action,  443. 

PENDENCY. 

ol  aaother  action,  (see  title  Aiiter  Actii^n  Pendent.') 

PERFORMANCE. 

by  plairtiff  of  condition  precedent  how  be  should  state  it,  316. 

excuse  of  how  to  be  stated,  317 

replication  to  plea  of,  when  it  must  state  a  breach,  556. 

PEP    FR  -NUDEM.  (sec  title  rm.ud.^ 

particulars  of  fraud,  when  need  not  be  stated,  552. 

PER  OTJOD  ACTIO  ACCREVIT.  j 

alies^ation  of  in  debt  ir  jcenend,  345,  6. 
ou  statutes,  359. 


INDEX.  693 

PEW. 

i-emedv  for  obstructing  of,  when  case,  and  when  trespass,  143- 175. 
declui-ation  for  disturbance  of,  367. 

PISCARY,  (see  title  Fish  and  Fishery.) 

PLACE,  (see  title  Fenue.) 

wliat  the  cuurts  take  judicial  notice  of,  222. 
when  not  material,  (see  title  Venue,)  384,  5. 

PLAINTIFFS,  who  to  be,  (see  title  Parties.) 

PLEADINGS  IN  GENERAL, 

parties  to  an  action  who  to  be,  &c.  (see  title  Parties,) 
ibrm  of  actions,  SiC  (see  title  Actions.) 
joinder   inactions,  (see  title  yoinder.) 
election  of  actions,  (see  title  Election  of  Actions.) 
of  pleading'  in  general,  215. 

dehnitioM  of,  statement  of  facts  and  not  argument  or  law,  215. 

1.  lihat  facts  necessary  to  be  stated  and  what  not,  216. 

1st.  not  facts  of  which  courts  will  take  notice,  217  to  223. 

matters  relating  to  the  kiiig,  217. 

matters  relating  to  the  parliament  and  statutes,  217,  18. 

common  law  rights  and  duties  and  general  customs,  2\S. 

ecclesiastical,  civil  and  marine  law,    220. 

customs  of  gavelkind,  Sic- 220. 

terms,  calendar,  days  of  week,  &c.  221,  2. 

division  of  England,  &c.  222- 

meaning  of  peculiar  English  words,  222,  3. 

course  of  proceedings  in  superior  courts,  &c.  223,  4,  5. 

privileges  of  their  officers,  224. 
2dly.   wiiere  the  law  presvmies  a  fact  it  need  not  be  stated,  226, 7,  8. 
3dly.  not  necessary  to  state   matters   which  sliould  be  stated  by  the 

other  side,  228. 
4thly.  statement  of  legal  fictions,  Stc.  229. 
,  5thly.  of  duplicity,  230. 

Othly.  of  unnecessary  statements,  231. 

7tldy.  ofsujjerfluity  and  repugnancy,   232,  3,  4. 

2.  tJie  mode  of  stating  tlie  facts,  235  to  241. 

wiien  no  precise  formal  words  necessary,  235. 
of  certainty  in  pkading,  236. 

3.  rules  of  constructions,  24-1  to  243. 

4.  division  of  pleadings,  243,  4. 

of  the  precipe,  (see  title  Fnecipe,)  245  to  248. 

of  the  declaration,  (see  title  JJeclaration,  &c.  248  to  402. 

ofthe  claim  of  conusance,  (see  title  Conusance.) 

of  appearance,  defence,  oyer,  and  impiirlancts,  (see  those  titles,)  402. 

of  pleas  to  the  jurisdiction,  (see  title  yitrisdiction,)  427. 

of  picas  in  abatement,  (see  title  Abatement,)  434. 

of  pleas  in  bar,  (see  title  Fleas  in  bar.) 

of  replications  and  new  assignments,   (see  title  i?f/»//cfl^/oRs  and  ?*^fw  .^^i- 

signnients  ) 
of  rejoinders,  (see  title  Fejoijiders-) 
of  issues,  (see  title  Issur.) 
of  repleaders,  (see  title  Repleaders.) 
of  pleas  puis  darrein  continuance,  (see  that  title.) 
of  demurrers  and  joinders,  (see  title  Demurrers.) 


694  INDEX. 

PLEAS  IN  GENERAL, 

order  of  pleading'  and  consequence  of  non-observance  of  it,  423. 

to  the  jurisdiction  of  the  court,  (see  title  yurisdiction,)  425.  427. 

in  abatement  and  proceedings  therein,  (see  title  Abattnient,)  434  to  459- 

iin  bar,  459  to  548. 

defined  and  several  descriptions,  459. 
criterion  of,  445. 

must  be  of  matter  of  defence  at  law  not  in  equity,  459. 
when  not  of  matter  of  practice,  460. 
analytical  tables  of,  461  to  465. 

general  observations  when  general  issue  or  special  plea  proper,  465  to  468. 
of  the  several  pleas   in  bar, 
the  several  sorts, 

assumpsit,  (see  title  Assumpsit,)  469  to  ^76- 
in  debt,  (see  title  Debt,)  475  lu  4»2. 
in  covenant,  (see  title  Covenant,)  4^2  to  483. 
in  account,  (see  title,   Account,)  483  to  484. 
in  detinue,  (see  title  Dctimte,)  484. 
in  actions  by  or  against  executor.s,  heirs,  &c.  484 to  486. 
in  case,  (see  title  Case,)  486  to  490. 
in  trover,  (see  title  Trover,)  490. 
in  replevin,  (see  title  /Replevin,)  490  to  49L 
in  trespass,  (see  title  Trespass,)  491  to  497. 
in  ejectment,  497. 
of  pleading  the  general  issue  or  a  special  plea  in  general,  497  to  504 

of  giving  colour,  498  to  503. 
when  advisable  to  plead  specially,  503. 
all  defences  to  be  pleaded,  504.  , 

of  sham  and  issuable  pleas,  505. 
of  the  (jualities  of  pleas  in  bar, 

must  be  conformable  to  the  count,  507. 

if  not  wlien  plaintiff  may  sign  judgment,  507. 
must  answer  all  assumed  to  be  answered  and  no  more,  509. 
must  confess  the  facts  pleaded  to,  511. 
must  be  single,  511. 
must  be  certain,  513  to  518. 

must  be  direct  and  positive  and  not  argumentative,  518,  19. 
must  be  capable  of  trial,  519. 
must  be  true,  (see  title  Sliam  Pleas,)  520. 
rules  of  construction, 

construction  against  the  plea,  when  ambiguous,  521  to  523. 
if  bad  in  part  considered  bad  for  the  whole,  523. 
when  surplusage  or  repugnancy  vitiates,  524  to  526. 
of  the  forms  and  parts  of  pleas  in  bar, 
analytical  table  of  the  parts,  526. 
general  form  given,  527. 
title  of  the  court,  527.422. 
title  of  tlie  term,  527.  447,  8. 

when  a  special  title  proper,  527,  8. 
names  of  the  parties  in  margin,  528. 
the  commencement  of  the  plea,  528. 

name  of  the  defendant,  528. 

appearance  in  person  or  attorney,  529.  410  to  412. 
defence,  529,  30.  410  to  414. 
by  what  attorney,  &c.  530. 
to  a  part  of  cause  of  action,  531»  2,  3. 
to  several  counts,  &c.  533. 
the  body  of  the  plea,  534,  5. 
the  conclusion,  535. 

when  to  conclude  to  the  countiy,  535,  6. 7 


INDEX.  695 

?LEAS  IN  GENERAL— (con(/n«erf.) 

oi  \.\\<i  forms  and  parts — (continued.) 

when  witli  a  venfication,  557. 
wlien  to  the  record,  538. 
prayer  of  judgrnent,  539. 
defects  in  conclusion,  when  aided,  540! 
OP  several  pleas  in  bar  under  statute  Ann.  540. 
confined  to  courts  of  record,  541. 
•what  double  pleas  allowed  in  court  of  record,  541. 
each  plea  must  be  valid  in  itself,  543- 
formof  in  general,  542,  3. 
Of  pleas  by  several  defendants,  543  to  546.  447- 

when  they  may  join  or  must  sever,  543. 
consequences  of  their  joining,  545. 
form  of  plea  by  several,  543  to  546. 
replication  and  demurrer,  &c.  to,  546. 
Defects  in  pleas  when  aided,  and  how,  546,  7. 

Of  pleas  in  bar  is   replevin,  (see  titles  Replevin sni  Replication.) 
Of  pleas  puis  darrein    continuance,  and  pending  action,  (see   tltlfe 
Puis  Darrein,  C'c) 

I'LEDGES. 

when  to  be  added,  401. 
not  necessary,  401. 

PLENE  ADMINISTRAVIT,  (see  title  Executor.) 
Plea  of,  485. 
replication  to,  557. 

of  taking  judgment  of  assets,  quando,  &c.  548- 

POLICY  BROKER, 

when  he  may  sue,  5. 
when  liable  to  be  sued,  25, 

POOR  RATES. 

general  avowry  for,  491. 

POSSESSION. 

when  essential  to  support  trespass  ;  as  to  personalty,  166  to  168. 

as  to  real  property,  175,  6 
when  sufficient  to  declare  upon  plaintiffs,  365  368, 

defendants,  369. 

POUND-BREACH. 

remedy  for,  140. 

POUND-KEEPER. 

when  not  liable  to  be  sued,  ] 

PRACTICE. 

wlien  matter  of  not  pleadable,  460. 

PR.fi CIPE  AND  ORIGINAL  WRIT. 

when  to  proceed  by  original  writ,  245. 
form  of  in  assumpsit,  245  to  247. 

in  trespass,  but  unusual,  245. 

in  debt  and  covenant,  247,  F 

PRAYER  OF  JUDGMENT. 

in  a  plea  general  rule.  44.5.  6. 


t&G  INDEX. 

PRECEDENT  CONDITION,  (see  title  Condition  Freccdcnt.) 

PRECEDENTS  IN  PLEADING. 

why  to  be  adhered  to,  236.  86. 

PRECLUDI  NON. 

what  part  of  replication  so  termed,  573. 
how  to  be  framed,  if  to  a  part  of  plea,  ib. 

PREMATURE  ACTION, 
consequences,  442. 
plea  of,  though  not  usual,  442. 

PREMIUMS  OP  INSURANCE. 

who  liable  to  be  sued  for,  25. 

PRESCRIPTION. 

how  to  be  stated,  365. 

freeholder  to  prescribe,  copyholder  wlieu  not,  561 

wlio  may  join  in,  544. 

PRINCIPAL,  (see  title  Agent,  Master,  Otuncr,  &c.) 
when  he  may  sue,  5. 

PRISONER,  (see  title  Fescue.) 

declaration  against  in  custody  of  sherifij  8ic.  287,  S-. 

PRIVILEGES. 

of  what  the  court  will  take  notice  without  pleading,  224 
of  person,  plea  of,  (see  title  Ahateinent,)  4o0. 
how  plea  cot\cludes,  450. 

PRIVITY  OF  ESTATE  AND  CONTRACT. 

Nature  of,  274,  5,  6. 

IPROCESS. 

not  bailable,  declaration  need  not  correspond  with  when,  34. 
jubtificatiun  under,  must  be  stated,  492,  3-  5,  6. 
replications  to  pleas  justifying  under,  564.  569. 
new  assignments  relating  to,  (see  title  New  Assignments.') 

PROCHEIN  AMI. 

of  declaring  by,  291. 
of  pleading  by,  449. 

PROFERT. 

The  nature  and  form  of  it,  348  to  351. 

when  a  profert  or  an  excuse  for  omission  necessary,  348  to  351. 

at  the  end  of  declaration  of  letters  testamentary,  &.c.  400- 

omission  of,  only  ground  of  special  demurrer,  350.  460. 

whether  an  unnecessary  profert  entitles  the  other  party  to  oyer,  415. 

PROLIXITY. 

when  short  pleading  allowed  to  avoid  it,  240. 

PROMISSORY  NOTE,  {see  title  jSill  of  Exchange.) 

PROPERTY. 

what  sufficient  in  personal  property  to  support  trespass,  166,7' 
what  sufficient  in  real  property,  (see  title  Possession.) 
pleadable  in  abatement  or  bar  in  replevin,  434,  5. 


INDEX.  69? 

VROTESTANDO, 

defined,  &c. 

in  general,  589  to  592. 

replication  protesting  delivery  of  a  pipe  of  wine  in  satisfaction,  589!- 

protesting  a  writ  and  warrant,  58.9. 
nature  and  utility  of  it,  590. 
what  matter  may  be  protested,  590. 
defect  in,  consequence  of,  590,  1. 
form  of,  in  a  plea,  591. 

in  a  replication,  591. 

PROUT  PATET  PER  RECORDUM. 
when  necessary  to  be  alleged,  356. 
omission  of,  how  to  be  objected  to,  356. 

PUIS  DARREIN  CONTINUANCE. 

plea  of  when  proper,  532. 

pleas  of  in  general,  634  to  638. 

how  to  plead  matter  arising  pending  suit  and  before  issue,  634,  5,  C> 

after  issue,  635,  6. 
what  matters  so  pleadable,  635,  6. 
is  not  a  departure,  623. 
in  abatement,  6S6. 
judgment  upon,  peremptory,  ib.  457. 
in  bar,  636. 
nature  of,  636. 
time  when  to  be  pleaded, 

in  bank,  636,  7- 

at  nisi  prius  and  when,  637. 
requisites  of,  637- 
forms  of,  637,  8. 
affidavit  of  truth,  638. 
effect  and  other  parts  relating  to,  ib. 
marriage  of  plaintiff  pending  action,  437. 

PURCHASER. 

of  a  freehold  or  a  term,  how  to  declare  on  a  lease,  347- 

QUANTUM  MERUIT  COUNT. 

in  assumpsit,  335. 

not  necessary  though  usual,  337- 

in  debt,  101.'345. 

QUANTUM  VALEBANT  COUNT. 

in  assumpsit  not  necessary  though  usual,  335.  337. 
in  debt,  101.  345. 

QIJ.£   SUNT  EADEM. 

of  this  allegation  in  conclusion  of  a  plea,  534,  5. 

in  case  of  a  united  plea  to  several  different  trespasses,  533,  4. 

QUI  TAM,  (see  title  Penal  Statute.) 

when  necessary  so  to  declare,  356. 

READINESS. 

to  perform  condition  precedent,  averments  of,  310  to  "2^. 

REAL  PROPERTY. 

case  for  injuries  to,  when  proper,  141,  2. 
trespass  for  injuries  to,  when  proper,  141,  2- 

Voi>.  T.  {  66  ] 


698  INDEX. 

REBUTTERS. 

nature  of,  &c.  629. 

RECOGNISANCES   OF  BAIL. 

what  the  best  remedy  on,  lOit. 
declaration  on  it,  354. 

jjrout  patet  per  recordum,  356. 
plea  of  nul  tiel  record, 
replication  to  plea  of,  no  capias  ad  satisfaciendum,  55r. 

RECORD,  (see  title  Nul  Tiel  Record.) 

when  trover  does  not  lie  for  conversion  of  it,  150. 
declaration  on,  (see  title  Debt,)  354  to  356. 

REFERENCE  TO  DEED, 
statement  of  it,  352. 

REJOINDERS. 

defined,  627. 

governed  by  the  same  rules  as  pleas,  ib. 

must  not  depart  from  the  plea,   (see  title  Departure,")  627. 

cannot  obtain  leave  to  rejoin  double  or  several  matters,  627. 

similiter  and  form  of,  627,  8. 

conclusion  with  verification,  when  necessary,  &.c.  628. 

conclusion  to  rejoinder  denying  several  matters,  629. 

RELATIVE  RIGHTS. 

remedies  for  Injuries  to,  134.  137 
declaration  for  injuries  to,  365. 

RELEASE. 

may  be  given  in  evidence  in  assumpsit,  471- 

in  case,  486,  7. 
must  be  pleaded  in  actions  on  specialty,  480. 

in  trespass,  486.  496. 
replications  to  plea  of  in  assumpsit,  553. 

in  trespass,  569. 
puis  darrein  continuance  plea  of,  (see  title  Puis  Darrein,  &c-) 

RENT, 

recoverable  by  whom,  11. 
against  whom,  35,  6. 
how  recoverable  in  assumpsit,  .338. 
in  debt,  103.  35,  6. 

wlien  not,  106.  35. 
in  covenant,  35,  6.  106. 
when  not,  112. 
avowrj- or  cognisance  for,  491. 

REPLEADER. 

when  awarded  incase  of  an  immaterial  issue,  631,  2. 

wlieu  granted  before  trial,  633. 

denial  of  it  when  error,  ib. 

judgment  and  pioreeding  de  novo,  633. 

no  costs  are  pfijnbie  by  ei'ihcr  party,  633. 

not  after  a  default  at  nisi  prius,  6oo- 

when  not  after  demurrer,  &c.  ib. 

distinction  between  it  and  a  judgment  non  obstante  veredicto,  634. 

RESCUE,    140. 


INDEX.  699 

REPLEVIN,  ACTION  OF. 

■when  the  action  lies  in   general,  157- 
the  nature  of  the  action,  158. 
for  what  property  it  lies,   158. 
who  may  support  it,   158. 
for  what  injury  it  lies,  159. 

the  pleadings,  judgment,  and  costs  m  general,  161,  2- 
declaration, 

title  of  court  and  term,  261  to  264. 
venue  in,  (see  title  Venue) 
commencement,  285  to  292. 
statement  of  the  property,  363-  l^^- 

plaintlft"'s  property  therein,  365. 
the  injury,  161.  380.  383,  4,  5. 
damas^es,  &c.  385. 
conclusion,  397  to  400. 
$  pledges,  400. 

pteas,  avowries,  and  cognisances  in, 

plea  in  abatement,  or  bar  of  propevtjr,  &c.  434. 
non  cepit,  when  proper,  490. 

evidence  under  it,  159. 
cepit  in  alio  loco,  490,  1. 
not  guilty  when  allowed,  491. 

avowries,  &c.  for  rent,  &C.491.  r,„    o    in  Wi   4 

by  tenants  in  common,  jomt-tenants,  &c.  9,  i".^^'>»  * 
words  of  avowry  instead  of  cognisance  not  material,  5ol. 
pleas  in  bar  to  avowries  and  cognisances,  &c. 
may  plead  in  bar  several  pleas,  560. 
de  injuria  improper,  560. 
no  new  assignment  permitted,  602,  3. 
to  a  plea  of  cepit  in  alio  loco,  ib. 
denial  of  defendant's  being  bailiff,  560. 
to  an  avowry  for  rent, 

denial  of  the  tenancy,  ib. 
pa3'ment  of  ground  rent,  &,c.  560. 
eviction,  561 

nil  h.'ibuit  a  bad  plea,  561.  — 

tender,  561. 
to  an  avowry  damage-feasant,  561. 

denial  of  defendant's  title,  561. 
a  demise  from  defendant,  561. 
rieht  of  common,  561,  2. 
right  of  way,  562. 

defect  of  fences,  562. 
abuse  of  distress,  ib. 

REPLEVIN  BOND. 

case,  for  not  taking  replevin  bond,  140. 
taking  insufficient  pledges,  140. 
REPLICATIONS. 

To  pleas  to  the  jurisdiction,  (see  title  Jurisdiction,  fleas  to.) 
To  pleas  in  abatement,   (see  title  Abatement,  Fleas  in.) 
to  particular  pleas  in  abatement, 
to  a  plea  of  coverture,  438. 
to  a  plea  to  the  count  nf  variance,  439.  ^ 

if  oyercraved,  plaintift" may  sign  judgment,  4o9. 
or  apply  to  court  to  set  it  aside,  439. 
ro  the  writ, 

to  a  plea  of  variance  or  misaddition, 

when  plaintiff  may  sii^n  judgment,  440. 
apply  lo  court  to  set  it  aside,  440 
tb  a  plea  of  another  action  pending,  _ 

cannot  discontinue  first  to  support  tlie  second,  44o. 


roa  INDEX. 

HEPLICATIONS— (co;if»mf<f.) 

To  pleas  in  abatcjnent  to  the    -wyxi— {continued.') 
to  a  plea  improperly  entitled,  &,c. 
m;iy  sign  judgment,   448. 
may  apply  to  court  to  set  it  aside,  ih, 
tnay  demur,  ib. 
or  allege  the  imparlance  as  estoppel,  ih. 
to  a  plea  of  misnomer,  454,  5. 
to  a  plea  of  nonjoinder,  454. 
in  general, 

form  and  requisites  of,  454,   5. 
To  pleas  in  bar, 

-general  observations,  548 
election  of  several  when,  549  to  551. 
analytical  view  of,  550. 
I.  of  the  different  replications,  551  to  570. 
in  assumpsit,  551  to  555. 

to  a  plea  of  infancy*  551. 
coverture,  551. 
alien  enemy,  551. 
insolvent  debtor's  act,  552. 
illegality  in  the  contract,  &c.  553;. 
tender,  552. 

accord  and  satisfaction,  532. 
ai'bitrament,  553- 
judgment  recovered,  &c.  553. 
release,  553. 
set-ofi',  553. 

court  of  conscience  act,  554. 
statute  of  limitations,  554- 
in  debt, 

on  simple  contract,  555. 
^  on  specialty,  555,  6. 

on  records,  556. 
on  statutes,  55r. 
covenant,  557. 

in  actions  against  executors  and  administrators,  557,  8 
in  actions  against  an  heir,  &c.  559. 
in  actions  on  the  rase,  559- 

in  general,  559  to  560. 
when  de  injuria  sufficient,  55^,  560. 
in  replevin, 

de  injuria  improper, 
to  a  plea  of  cepit  in  alio  loco,  560. 
denial  of  defendant's  being  baililf,  560. 
to  an  avowry  for  rent, 

deni:d  of  tenancy,  560. 
payment  of  ground  rent,  &c.  560,  1. 
eviction,  561. 
nil  hubuit  a  bad  plea,  561. 
tender,  561 
to  an  avowry,  damnge-feasant,  561. 

denial  of  defendant's  title,  561. 
a  demise  from  defendant,  561- 
right  of  common,  561,  2., 
right  of  way,  562. 
defect  of  fences,  562. 
abuse  of  distress,  562. 
in  trespass, 

to  persons, 

when  de  injuria  sufficient,  562,  3. 


INDEX.  roi 

UEPLICATIONS— Cco"t;«"e(/.) 

in  trespass — {continued) 

to  persons — ^continued.)  _ 

when  plaintiff  nnust  reply  specially,  56i,  4. 
where  he  must  r.ew  assign,  SGo. 
wliere  he  can  onl)  take  issue  on  part  of  plea,  5Q>^' 
to  personal  proi-erty, 

wlien  de  injuria  sufficient,  564,  5. 
when  not,  564,  5- 

wiicn  the  replication  should  be  special,  564,  5. 
when  the    plaintifi  can  only   take   issue    on  pai-t  of  the 
plea,  564,  5. 
to  real  property, 

to  a  plea  of  liberum  tenementum, 

1    when  general  denial  sufficient,  565. 
1.  title  derived  from  defendant,  566. 
3.  title  derived  from  a  prior  owner,  566. 
4  new  assignment  of  abuttals,  &c.  566. 
when  plaintiff  may   deny    defendant's    autliority  a< 
agent,   he  566. 
to  a  plea  of  license,  567. 

defect  of  fences,  567. 
right  of  common,    568. 
right  of  way,  569. 
to  a  plea  of  any  matter  in  discharge,  569,  570. 
II.  of  tiie  fonns  of  replications  and  particular  parts, 
title  of  the  court  and  term,  570. 
imparlance  and  suggestion,  when  projicr,  570- 
to  a  plea  concluding  to  the  country,    570. 
of  tlie  similiter  in  general,  570,  1. 
to  a  plea  of  nul  tiel  record  or  stating  a  record,  571. 
to  a  special  plea  concluding  with  a  verification,  572. 
the  commencement  of  tlie  replication,  573. 
matter  of  estoppel,  573. 
of  the  prechidi  non,  573. 
form  where  tlie  replication  only  answers  part   of  plea, 

573,  4 
form  where  it  answers  separately  different  parts,  573,  4 
f  )rm  where  the  replication  answers  several  pleas,  574. 
'.he  body  of  the  replication, 

a  statement  ot  matter  of  estoppel,  575. 

when  the  ground  of  demurrer,  ib. 
denial  of  the  plea,  576,  7. 
^  of  the  whole  plea  de  injinna,  &c  577. 

when  allowed,  &f-.  577 to  585. 
the  form  of  it,  585. 
denial  of'.nly  part  of  the  plea,  585. 
of  what  fact,  5S5  to  589. 
the  mode  of  special  denial,  589  to  590. 
a  denial  and  stating  a  breacii,  598,  9. 
confession  and  avoidance,  599. 
inst-inces  of,  599,  600. 

form  and  requisites  of  these  replications,   600,   1. 
new  assignment,  (see  title  Nevj  Assignvient,)  601. 
the  conclusion  of  the  replication, 
in  particular  instances,  614,  15. 
when  it  should  be  to  the  country,  615. 
of  a  re])lication  concluding  with  a  traverse,  615. 
when  a  particular  fact  is  denied,  615. 
when  with  a  verification,  616. 
when  it  must  be  of  new  matter  as  stated,  616. 


'702  INDEX. 

REPLICATIONS— (co;r^f«»/fj'.) 

tlie  conclusion  of  tlie  replication— (co;jf/;jijCi/.; 
wlien  i    need  not,  616. 
estoppel,  616,  17. 
prayei-  of  judg-meiit,  6ir. 
consequences  of  mistake,  445,  6. 
III.  tlie  (jualities  of  repiications, 

in  many  resptcts  similar  to  those  ofa  plea,  617. 
must  answer  so  much  of  the  jilea  as  it  professes  to  answer,    618. 
must  not  dep  u-t  from  the  declaration,   (see  title  Departure,)  618. 
instances  of  departure,   618,  19. 
Iiovv  to  be  objected  to,  623. 
must  be  certain  and  what  is  requisite,  624- 
must  not  be  double,  625,  6. 

duplicity  deiined,  625. 

whyoiijected  to,  ib. 

cannot  obtain  leave  to  reply  double,  625. 

when  it  may  put  in  issue  several  facts,  625. 

may  reply  one  matter  as  to  part,  and  anotlier  as  to  residue,  625. 

when  may  state  several  breaches  under  statute,  626. 

replication  to  a  ])lea  of  set-oH',  626. 

must  be  objected  to  by  special  demurrer,  626- 

REPUGNANCY. 

what  and  how  far  objectionable,  232  to  235. 

heputation. 

remedy  for  injuries  to,  124.    137". 

REQUEST. 

when  plaintiff's  request  to  be  averred  in  a  declaration,  322  to  325. 

form  ofallei^ations  and  difference  between  general  and  special  request,  324,  S. 

consequence  of  mistake,  324. 

when  defendant's  request  necessary  to  be  stated  in  common  counts,  338. 

to  remove  a  nuisance  when  to  be  stated.  576,  7 

RESCUE. 

remedy  for,  140. 

RETAINER  BY  AN  EXECUTOR, 
when  to  be  pleaded,  485. 

REVERSION. 

property  in,  remedies  for  injuries  to,  133  to  142- 

when  reversioner  may  sue,  49,  50- 
declaration  for  to  personal  property,  365. 

RIENS  EN  ARRERE. 

to  real  property,  367. 

plea  of  in  debt,  477,  8. 

in  covenant  a  bad  plea,  482- 

plea  in  bar  of,  in  replevin,  560. 

IfllEN  PER  DESCENT  OR  DEVISE, 
plea  of,  4H5. 
replication  to  it,  559. 

RIOT  ACT. 

remedy  upon,  144- 

RIGHT,  (see  Title.) 


INDEX.  ?03 

SAILOR. 

when  he  may  sue  fos  share  of  profits  of  a  voyage,  27. 

SCIENTER. 

when  material  to  be  stated  and  proved,  69.  136. 

when  not,  139. 

when  material  to  be  alleged  and  consequence  of  omission,  Sf .  7. 

SCILICET,  (see  title  Videlicet.) 
the  etlect  of  it,  308.  ' 

SCIRE  FACIAS. 

declaration  in,  states  no  damages,  397- 

when  affidavit  of  truth  of  pleas  in,  necessary,  45?. 

SECT  A,  (see  title  Suit.) 

SECURITY  COLLATERAL. 

when  no  bar  to  an  action,  35. 

SEPARATE  MAINTENANCE. 

form  of  action  in  case  of  nonpayment  of,  95. 
cannot  be  replied  to  a  plea  of  coverture,  438. 

SERVANTS,  (see  titles  Parties,  .^genty  and  Master  and  Servant.) 
when  he  cannot  sue  on  a  contract,  5. 
when  he  may  sue  for  a  tort,  48. 
when  he  is  liable  to  be  sued  on  a  contract,  24. 

for  a  tort,  67,  8.  71  to  73. 
remedy  for  debauching-  of,  or  beating  or  enticing  away,  138. 
when  he  cannot  sue,  151. 

SZT-OFF. 

when  to  be  pleaded,  or  notice  of  it  given  in  assumpsit,  473,  4. 
when  best  to  be  pleaded,  475. 

may  plead  or  give  notice  of  it  in  debt  on  simple  contract,  476. 
cannot  be  pleaded  in  replevin  except  for  ground-ient,  561. 

if  part  of  set-off  badly  pleaded,  defendant  must  not  demur  to  the  whole  plea,  524. 
replication  to  plea  in  assunip.«it,  353. 
in  debt,  555. 
where  part  of  plea  is  on  a  record,  &c.  526. 

SEVERAL  COUNTS. 

joinder  of  forms  and  causes  of  action,  196  to  207. 

several  counts  wlien  they  may  and  should  be  added,  391,  2. 

they  should  be  substantially  diflerent,  391. 

at  the  suit  of  or  against  an  executor  or  administrator,  391,  2. 

in  assumpsit,  392. 

in  debt,  392,  3. 

in  covenant,  393. 

in  actions  for  torts, 

in  trespass,  393. 
no  misjoinder,  394. 
costs  to  be  attended  to,  394,  5. 
form  of  the  counts,  391.  396,  7- 

.SEVERAL  DEFENDANTS,  (see  titles  Parties  and  Pieas.) 
pleas  by  in  general,  543  to  546. 
one  may  plead  in  abatement,  another  in  bar,  and  another  demur,  447.  543. 

SEVERAL  PLEAS,  (sec  title  P/m.?.)  540  to  543. 

SEWERS  RATE. 

avowry,  ?ic.  for,  49. 


704  INDEX. 

SHAM  PLEAS. 

wliat  and  whicli  only  should  be  adopted,  505,  C 
consequence  of  plea  appearing  to  be  false,  520, 1 
vvlien  no  affidavit  of  truth  necessary,   452. 

SHERIFF  AND  OFFICER,  (see  title  Escape,  &c.) 
when  sheriff  liable  for  act  of  his  officer,  69.  73. 
sherifi"  when  to  be  sued,  69.  73. 
remedy  again.st,  137. 
when  trover  against  will  not  lie,  150. 
when  trespass  against  will  not  lie,  168, 9. 
when  tresp.tss  lies  against  for  abuse  of  process,  185,  6. 
sheriff  or  officer,  when  they  should  not  join  in  plea  with  another,    545. 

tJHIP. 

captain  of,  when  he  may  sue  or  be  sued,  5.  23,  4. 
sailor  when  he  may  sue  for  proportion  of  earnings,  26. 
remedy  for  negligently  navigating  of,  126.  139. 
who  agamst,  68,  9. 

SIMILITER. 

when  proper  to  a  plea,  549. 

form  of  it  in  a  replication,  and  consequence  of  mistake,  570,  1. 

in  a  rejoinder,  627. 
when  plaintiff  may  add  it,  628. 

SIMPLE  CONTRACT,  (see  titles  .dssujiipsit  and  Debt.) 
debt  upon  it,  344,  5. 

SLANDER,  (see  titles  Words,  Case,  Innuendo-) 
remedy  against  whom, 

for  written  slander  lies  against  two,  73. 

for  verbal  only  against  one,  74- 

against  husband  and  wife,  81. 
form  of  action  lor,  case,  137. 
declaration  in, 

inducement  of  good  character  not  necessary,  226.  364. 
of  trade,  &.c.  when  necessary,  365.381, 

colloquium  of  plaintiff'  and  trade,  &,c.  381,  2. 

statement  oftlie  libel  or  words,  382. 

the  innuendoes,  382,  3. 

the  damages,  385,  6,  7. 
cftnsequences  of  defect  in,  382,  3. 
pleas  in, 
general  issue  when  proper,  487,  8. 

truth  of  the  slander  imist  br-  pleaded  specially,  487,  Hr 
I'eplication,  in  what  sufficient,  559. 
new  assignment  in,  when  proper,  603- 

SOVIT  AD,  or  POST  DIEM, 
when  proper,  480- 
replications  to,  555. 

SON   ASSAULT  DEMESNE. 

must  be  pleaded  and  not  given  in  evidence,  472- 

when  not  advisable  to  plead  it  on  account  of  costs,  kc.  503,  4. 

rcjillcations  to  plea  of,  w  hen  de  injuria  proper,  562,  3. 

when  not,  and  the  replication  must  be  special,  563,  4. 
see  the  instances,  599. 
new  assignment  when  pi*oper  or  not,  604,  5. 

SPECIAL  COUNTS,  (see  the  respective  actions.) 
in  assumpsit,  292,  Sic. 

b'PECIAL  DATMAGES,  (see  title  Damage.) 


INDEX.  705 

SPECIAL  ORIGINAL,  (see  title  Precipe.) 

vviicn  adu'jableto  proct-ed  by,  245. 
form  of  in  assumpsit,  245  to  247- 

in  trespass,  but  not  usual  to  proceed  by,  245. 

in  deb',  and  covenant,  247,  8. 

SPECIAL  PLEAS,  (see  title  iYeai,  and  tlie  respective  actions.) 

SPECIALTIES,  (see  titles  Deed  o^nA  De^t) 

assumpsit  when  it  does  not,  or  does  lie  upon,  94  to  98. 

STAKEHOLDER. 

when  liable  to  be  sued,  25. 

STATUTE  OF  LIMITATIONS,  (see  title  Limitations.) 

STATUTE  OF  USES, 

how  to  plead  deeds  Dperatin^  under  it, 
no  profert  necessary,  349- 
consideration  of  to  be  stated,  351. 

STATUTES,  (see  also  title  Penal  Statutes.) 

of  wliat  matters  relating  to  them,  ^lie  courts  take  judicial  notice,  218 
public  oug'ht  not  to  be  set  forth,  but  only  r  ferred  to,  218,  19. 
excejning  clause  or  proviso,  how  to  be  pleaded,  229. 
actions  upon  debt,  104 

case,  143,  4. 
declaration  on  penal  statute,  356  to  360. 

SUGGESTION. 

in  a  replication  of  death,  &c.  576. 

SUIT. 

at  end  of  declaration,  nature  of  it,  399. 

SURETY, 

action  ag'ainst  on  his  collateral  undertaking-,  94.  106. 
declaration  ag'ainst,  339. 

may  sue  his  cosurety  for  proportion  of  money  paid,  27 
executors  of  when  not  liable,  37. 

SURGEON, 

assumpsit  against,  92. 
case  against,  137- 

SURPLUSAGE. 

wha'  is,  216. 

consequences  of  it,  231,  2,  3,  4. 

in  an  inducement  when  not  materia!,  294.  34" 

in  a  plea  when  it  prejudices  or  not,    524. 

SURREBUTTER. 

nature  and  requisites  of,  629. 

SURREJOINDER. 

nature  and  requisites  of,  629. 

SURVIVOR,  (see  titles  Parties  and  Partner.) 
when  to  sue,  11. 

what  demands  he  may  join,  12-  200. 
when  to  be  st.ed,  37. 

what  demands  may  be  joined,  37.  200 
Vol.  I.  [  67  ] 


706  INDEX- 

TLNAISTTS  in   common,  {^ee  i\t\e  Parties.) 
aclJDiis,  ike.  bv, 

w'len  nu\  join  ov  sever  in  an  acion  ex  contractu,  9. 
when  tliej  must  j(jin  in  an  action  for  a  tort,  31,  2. 

in  replevin,  l.")9. 
must  sever  in  an  avc)\vry  for  resit,  9.  543,  4. 

how  to  avow  and  make  coirnisance,  544. 
how  to  avow  and  make  cognisance,  ha-  a  distress  damage-feasant,  544, 
wlien  cannot  sue  each  other  in  trover  or  trespass,  155,  6.  170-  172-  180. 
in  ejectment,   192. 
actions,  &c.  ;i gainst, 

liow  to  be  sued,  2.5. 

wlien  they  must  be  sued  jointly  for  torts  relating'  to  their  land,  7fi 

when  onecannotsue  tlie  other,  155,6.  170.  172.  180. 

TENANTS  JOINT,  (see  title  Joznt-tenanU.) 

TENDER. 

wlien  not  necessary  to  be  stated  by  plaintiff  and  readiness  sufiicient>  318,  9. 
plea  of, 

in  assumpsit,  473. 
in  debt,  476. 
in  trespass  496- 
in  bar  in  replevin,    561,  2. 

when  cannot  be  pleaded,  with  general  issue  to  the  whole,  541- 
how   to  conchide,  539. 
replications  to  a  plea  of,  In  assumpsit,  552. 
in  trespass,  569. 

TENEMENT. 

when  too  general  a  description  in  pleading,  189.  362. 

TERMS. 

duration  of  need  not  be  stated  in  pleading,  221,  2. 

statement  of  in  a  declaration,  (see  Title  of  Term,)  262  to  264. 

TIME. 

statement  of  it  in  a  declaration,  257,  8,  9-  383. 

in.  stating  a  materia!  fact,  257,  8. 

how  often  to  be  stated,  258,  9. 

when  nut  nccessiiry  to  be  stated,  257,8,9-  383,4. 

when  precise  time  not  material,  258,  9.  383. 
in  stating- contracts,  258,  9. 
in  st&ting-  torts,  383,  4- 

when  torts  may  be  stated  to  have  been  committed  on  se\  eral  da)  s,  384. 

no  cause  of  action  or  damages  lo  be  stated  after  title  of  the  term,  259.  265, 

when  mistakes  aided,  260.  390.  [6.  390. 

statement  of  it  in  a  plea,  517.  508,  9. 

when  not  traversable,  587. 

when  immaterial  and  not  a  departure,  622,  3. 
how  obtained  by  a  dilatory  plea  of  demurrer,  (see  title  Sham  Plea) 

TITHE. 

action  for  not  setting  out  lies  against  two,  73. 

lies  at  suit  of  an  executor,  58. 

lies  against  an  executor,  79. 

form  of  remedy,  105. 
vhcn  action  lies  for  value  of,  91,  2. 
lemedy  for  not  carrying  away,  141 
ejectment  for,  189. 


INDEX.  ror 

TITLE  OR  ESTATE,  (see titles  D-^daration,  Pleas,  and  Replication.) 
statement  of  it  in  a  declai-ation, 

when  it  must  be  stated  in  covenant  oi"  debt,  347- 

derivative  title,  353. 

unnecessary  statement,  when  it  don't  vitiate  when  not  traversable,  347. 

in  actions  of  tort  when  necessary  and  how,  364  to  374. 

when  not  traversable,  (see  title  Estoppel,)  347,  8. 
statement  of  it  in  a  plea, 

when  title  to  land,  &c.  may  be  given  in  evidence,  494. 

right  to  easements  mii.itbe  pleaded,  495- 
statement  of  it  in  a  replication. 

when  necessary  593,  4, 5. 

TITLE  OF  COURT. 

what  in  a  declaration,  261. 
in  debt,  344. 
in  a  plea,  527. 

TITLE  OF  TERM. 

of  a  declaration, 

what  and  intent  of,  262- 
must  be  of  some  term,  262. 

when  a  declaration,  &c.  may  be  filed  in  vacation  of  preceding  term,  262. 
of  sometime  after  appearance  or  bail  filed,  262 
of  the  term  in  wliich  writ  returnable  and  when  not,  262,  3. 
against  several  defendants  who  appear  in  different  terms,  262,  3. 
after  outlawry  of  one  defendant,  263. 
of  a  declaration  by  the  by,  2&5. 
when  a  special  title  is  necessary,  263,  4, 
consequences  of  mistake,  264  to  267. 
how  aided,  265  to  267. 
of  a  plea, 

of  what  term  in  case  of  a  plea  in  abatement,  421  to  424-  447,  8.  528 
of  a  plea  in  bar,  527,  8. 
of  a  replication,  570. 

TOLLS. 

debt  or  assumpsit  for,  103. 
declaration  for  disturbance  of,  368, 
prescription  to  distrain  for,  &c.  589. 

TRAVERSE,  (see  titles  Denial,  De  Injuria,  &c.) 

defined  to  be  synonymous  to  denial,  576  and  id.  note  (a). 

formal  traverse  what  and  language  of,  ib. 

when  more  than  one  fact  may  be  put  in  issue,  577. 

must  be  put  in  issue,  577,  8. 
1st.  general  denial  of  whole  plea,  or  de  injuria  when  allowed,  &c.  578  to  585. 

form  of  it,  585. 
2d.  denial  of  only  part  of  the  plea,  585  to  599. 

Ist.  what  fact  may  be  denied,  586  to  589. 

of  immaterial  traverses,  597,  8. 

must  be  of  a  material  fact,  586. 

may  be  of  matter  under  a  videlicet,  ib. 

only  of  matter  expressed,  &c.  585. 

when  of  command,  566.  586. 

not  of  matter  which  defendant  estopped  to  deny,  586. 

not  of  immaterial  matter,  587. 

not  of  matter  of  law,  587. 

not  on  a  negative  alU^gation,  587- 

not  too  large,  587,  8.  510. 

nor  too  narrow,  588 


708  INDEX. 

TRAVERSE— (confinuer/.) 

^d.  mocks  or  form  ol'such  denial,  589  to  599. 

1.  protesting  a  part  and  </e  injuria  absque  residua  causa,  589. 

2.  a  diiect  denial  of  a  particular   allegation   without  a  forinal   tra- 

vtM-se,  592. 

3.  a  formal  traverse, 

when  improper  or  not  advisable,  592,  3,4. 
when  necessary,  593,  4. 
form  of  it, 

inducement,  595. 
bef^innis  g^  of  the  traverse,  596. 
lanj^nage  of,  595,  6. 
conclusion  of,  596,  7- 
wlien  a  traverse  after  a  traverse,  597,  8. 
consequence  of  improper  and  immaterial  traverses,  597,  8. 
defects  in,  when  and  how  aided,  598. 
4.  shewing  a  particular  breac  h,  598. 
when  proper  or  not  in  a  pica,  of  tune  or  place,  534,  5.    ' 
when  too  large,  510.  587,  8. 
■when  plaintifi  may  vaiy  from  defendant's  traverse  of  time  or  place,  59. 

TREASURER,  (see  title  Parties.) 
when  he  cannot  sue,  5. 

TREES. 

^tions  relating  to,  49,  50. 

by  or  against  executors,  59.  80. 
case  for  waste  t",  142. 
trover  for,  149,  50. 

TRESPASS,  (see  title  Trespass,  Action  of.) 
meaning  of  the  word,  57.  162. 

TRESPASS  AB  INITIO. 

the  nature  of  it,  172,  3.  180,  1. 

when  trespass  lies  for  it,  164  172.  180. 

replication  of  matter  of,  609. 

TRESPASS  FOR  MESNE  PROFITS,  (see  title  Mesne  Profts.) 

TRESPASS,  ACTION  OF. 

b^  and  asrainst  whom  it  lies,  (see  title  Parties  to  Action,)  65  to  73- 
general  points  governing  this  action,  122  to  133. 

lies  only  for  injuries  considered   as    committed  with  force  and  imme> 
diate,  123  to  ICS. 
for  what  injuries  not  under  colour  of  process. 

for  defendant's  own  personal  injury,  164  to  183. 
to  the  person, 

to  what  absolute  rights,  164. 
to  what  relative  rights,  164,  5. 
to  nersonal  property,  165. 
to  what  property,  167. 

animals  domiciled  and  ferre  naturae,  &c.  165  6. 
plaintiff's  interest  tlierein,  166.  [sary,   166. 

actual   or  c(>nst!»!ctive    possession  and  property  neces- 
general  owner  who,  167. 
bailee  who  has  an  interest,  168. 
bailee  having  no  interest,  &c.  168. 
mere  bare  possession,. 168j  9. 


INDEX  709 

TRESl'ASS,  ACTION  CTF,  (conth.ued.) 
the  injury,  169. 

for  what  illeijfal  taking-,  169. 
t'oi-  what  oilier  injury,  I71. 
for  a  trespass  ab  initio,  172,  3- 
to  real  property, 

to  what  property, 

must  be  corporeal,  kc.l73,  4,  5. 
the  plaintifi's  interest  therein, 

actual  possession  requisite,  175,  6,  7- 
what  possession  sufficKUt,  176. 
exclusive  possession  necessary,  177,  8. 
reversionary  interest  insufficient,  179. 
the  injurv, 

an  entry  of  defendant  essential,  178,  9. 
what  entry  sufficient,  178,  9. 
nonfeasance  won't  suffice,  179. 
when  it  hes  against  a  lessee,  joint-tenant,  &c.  180. 
for  the  act  of  an  agent,    servant,  &c.  when,  181. 
wiien  tiie  principal  is  not  liable,  181 
for  what  injuries  under  cutoiir  of  proctsi  and  vvhat  not,  183  to  187- 

1.  where  an  erroneous  judgment,  kc   is  given,  183. 

2.  when  the  court  has  no  jurisdiction,  184. 

3   wiiere  the  proceedings  were  defective,  184,  5. 

4.  where  the  process  was  misaj-'piii-d,  &c.  185. 

5.  wlien  the  process  is  uhused.  &c.  185. 

6.  where    a    ministerial  officer  has  acted  without  warrant,  186. 

7.  where  the  process  was  legal  but  maliciously  issued,  187- 
pleadings,  costs  and  judgment  in,  in  general,  187,  8. 
pleadings  in  particular, 

dvcLaration  in, 

title  of  court  and  term,  '2CA  to  264. 
venue  in,   (see  title  Venue  ) 
commencement,  285  to  292. 

statement  of  the  mailer  or  thing  affected,  362  to  364. 
of  the  plaintih's  right  or  interest,  364  to  374. 
of  the  injury,  374  t(;  385. 
of  the  damages,  385  to  390. 
alia  enormia,  387,  8. 
conclusion,  397  to  400. 
pledges,   400 
several  counts  in,  393. 
Fleas  in,  (see  title  Pleas  and  particular  titles) 

general  issue  in,  in  general  when  proper,  491,  2- 
special  plea  in  general  when  proper,  492. 
in  trespass  to  persons, 

when  plea  should  be  special,  492,  3. 
in  trespass  to   personal  propertj-, 

when  plea  should  be  special,  493,  4. 
in  trespass  to  real  jiropcrtj , 

when  plea  should  be  special,  494  to  496. 
in  actions  against  justices,  &c.  496 

Seplications  in,  (see  title  Jieplications-) 
Rejoinders  in,  (see  title  Rejoinder.) 

TROVER,  action  of, 

general  applicability  of,  147. 

in  respect  of  what  personal  properly  it  lies,  149. 

what  interest  the  plaintiff  must  have,  150,  1,  2. 

for  what  injury,  and  what  amounts  to  a  conversion,  15:J. 


no  INDEX, 

TROVER— icomlnued.') 

a  wrongful  Uking,  153. 
assmiiption  of  property,  153. 
(lemaiul  and  refusal,   154,  5. 
against  wliom  it  iloii't  lie,   155. 
pleadings,  ?tc.  therein  in  general,  156,  7- 
pleadings  therein  in  particular, 
declaration, 

title  of  court  and  term,  261  to  264. 
venue  in,  (see  title  Venue.) 
commencement,  285  to  292- 

statL-ment  of  the  matter  or  thing  affected,  362  to  364. 
of  tlie  plaintiff  's  right  or  interest,  364  to  374' 
of  I  lie  injury,  374  to  385. 
pledges,  400. 
special  plea  in,  when  advisable,  489,  490, 

TRUSTEE,  (see  title    Cestui  que  Trust.) 
when  he  must  sue,  3,  4,  5. 
under  composition  deed  cannot  sue,  11. 
when  he  maybe  sued,  and  when  not,  46.  66. 
auctioneer  and  stakeholder  considered  as  such,  25. 

TURNPIKE    ACT. 

persons  acting  under  it  may  plead  general  issue,  496. 

UNDER  LESSEE  when  not  liable,  36. 

UNDER  SHERIFF. 

when   cannot  be  sued,  73. 

USE  AND  OCCUPATION. 

assumpsit  far,  form  of  the  count,  338. 

defendant  estopped  from  disputing  lessor's  title,  575. 

USURY. 

may  be  given  in  evidence  in  assumpsit;  470. 
must  be  pleaded  in  actions  on  specialty,  479,  480. 
replication  to  plea  of  in  assumpsit,  552. 
in  debt,  555. 

VARIANCE,  (see  titles  Declarations,  Pleas,   and  Differed  Actions.) 
between  writ  and  declaration  cannot  be  pleaded,  438,  9. 

how  to  be  taken  advantage  of,  439.  249. 

in  names  of  the  parties,  249,  250,  1,  2. 

in  number  of  parties,    252. 

in  the  character  in  which  the  parties  sue,  &c.  253. 

in  the  cavise  and  form  of  action,  254,  5. 
in  a  declaration  from  facts,  when  material  or  not,  302  to  308. 

in  case,  372  to  374. 
in  d.ay  or  time  or  place  when  not  material,  (see  titles  Time  and  Venue,)  383,  4. 


VENUE, 


partioidar  points, 

where  to  be  laid  in  actions  by  original,  246.  273. 
when  bail  discharged  by  mistakes,  246.   249.  273,  4. 
in  a  declaration, 

general  rules  as  to  laying    it,  267,  8,  9. 
when  local  must  be  laid  in  real  county, 
real  actions,  271.  268. 
ejectment,   271.  268. 

actions  for  injuries  to  real  property,  ways,  &c,  271- 
trespass  and  replevin,  384,  5. 


INDEX.  711 

VENUE— (c-on/m«et/.)  .  p        ,      , 

when  no  remedy  here  where  land  is  out  of  Enghind,  721. 
venae   may    be  laid  in    another  county,  with  consent  and  by 

leave  uf  tlie  court,  271. 
option  of  one  of   several  counties  when,  271,    2. 
in  debt  or  scire  facias,  on  recognisance  of  rent,  272. 
in  debt   on  judgment,  272. 

debt  for  rent-cliarge  against  pernor  of  the  profits,  272,  3. 
local  custom,  273. 
when  transitory. 

acti(»ns  for  injuries  to  the  person  or  personal  property,  273- 
actions  on  contracts,  273. 

when  advisable  to  lay  it  m  proper  county,  274. 
in  actions  on  leases,  &c. 

transitory  between  lessor  and  lessee,  274,  5. 
though  land  lie  abroad,  274. 
in  the  delinet  against  an  executor,  275. 
is  local  in  the  debet    and  detinet  against  executor,  Q73. 
transitory  in  covenant  by  assignee  of  lessor  against  lessee,  275. 

or  in  covenant  b}  lessee  against  assignee  of  reversion,  275. 
but  local    in   debt  by  assignee   or  devisee  of  reversion  against 

lessee,  275. 
local  in  any  action  by  or  against  assignee  of  lessee,  275,  6. 

or  against  executors  of  lessee  in  debet  and 
detinet,  275,  6. 
local  by  statutes. 

actions  on  what  penal  statutes,   276,  7. 

does  not  relate  to  actions  on  all  penal  statutes,  ib.    3  Anstr.  871. 
in  actions  against  justices  of  the  peace,  &c.  27r. 
against  parties  acting  under  the  liighway  acts,  &,c.  279. 
■where  the  cause  of  action  arises  in  two  counties,  277. 
mode  of  stating  the  venue, 

in  margin  wlien  it  aids,  &c.  279,  280. 
in  the  body  of  the  declaration,  280 
when  a  particular  parish  or  place  to  be  stated,  200. 
in  inferior  court,  280,  1. 
where  the  matter  has  occurred  abroad,  281. 
in  stating  matter  of  record,  281. 

should  be  stated  distinctly  to  every  material  fact,   281,  2. 
when  the  place  is  or  is  not  material,  282,  3.  384,  5. 
in  trespass  and  replevin,  384,  5. 
consequences  of  mistake  and  wiien  aided,  283,  4,  5. 
in  a  plea  in  abatement  not  necessary,  44. 
in  a  plea  in  bar  not  necessary,  517. 

VERIFICATION. 

when  a  plea  should  conclude  with  it,  537,  8. 
when  a  rejilication  should  so  conclude ,  016. 
the  word  verify  for  certify  not  material,   616. 

VIDELICET,  (see  title  Scilicet,) 
effect  of  it,  308. 
matter  laid  under  it,  when  material  is  traversable,  561^- 

VI   ET    ARMIS. 

meaning  of  the  words,  123  to  125   162. 

when  necess  Ty  and  consequence  of  omission,  375 

when  improper  in  case,  14fi. 

VIRTUTE   CUJUS. 

when  the  allegation  is  not  traversable,  587- 


712  INDEX. 

WAGER  OF  LAW. 

when  penniUed,  107. 
when  not,  148. 

WAGES.. 

when  may  d'^clare  for  g-enerally,  339.     . 
when  must  declare  specially,  339,  340. 

WALES. 

pica  to  the  jurisdiction,  429,  430. 

WARRANT. 

sherili  's  not  necessary  to  allege  that  it  was  under  seal,  522,  3. 

WARRANTY. 

actions  for  breach  of  assumpsit,  92,  3. 

how  to  declare,  342. 
case,    139. 

WARRANTY   AND   FINE. 

when  feme  covert  liable  to  be  sued  on,  43. 

WASTE,  (see  title  Trees.)  ^ 

remedies  for,  case,  assumpsit  or  covenant,  14i. 
when  executors  cruinot  sue  for,  59. 
can  be  sued  for,  80. 

WATER    AND  WATER  COURSE, 
reu' -.iv  for  injuries  to,  142. 
when  trespass  and  when  ca'^e,  175. 
ejectment  for  how  to  be  brought,  188,  9. 
'     tleclaration  for  obstructing  of,  367. 

WAY,  RIGHT  OF,  ^ 

remedies  for  injuries  to,  143. 

how  to  be  described  in  pleading,   362. 

declaration  for  disturbance  of,  how  framed,  367. 

not  repairing  of,   399. 
pleas  of,  right  of  way  must  be  pleaded,  495. 

when  to  be  ple:ided  by  metes  and  bounds,  609,  610. 
replication  to  pleas  of,  how  to  conclude,  568,  592 

when  the  replication  should  be  special,  608,  9. 
new  assignment  extra  viam,  and  costs  upon,  569.  609.  611,  612. 

WIFE,  (see  title  Parties  to  the  Action  and  Baron  and  Feme.) 

WINDOWS,  (see  title  Ancient  Light.i.) 

WORDS,    (see  title  Slander.) 

of  what  English  words  the  court  take  notice,  222,  3. 

WORK  AND  LABOUR. 

common  counts  for,  when  proper  oi^not,  339,  340. 

WITNESS. 

remedy  against  for  not  attending  a  trial,  141.  9  East,  473. 

WRIT. 

pleas  in  abatement  to,  (see  title  Abatement,)  439. 

'  END  OF  VOLUME  I. 


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